By Victoria Butler-Cole – 7th July 2020
There can be a large number of people involved in a hearing in the Court of Protection, and as an observer who does not have access to the court papers, it is not always easy to figure out who is who. This Explainer may help.
The Judge. There are three levels (tiers) of judge in the Court of Protection. If you observe a case listed on the Family Division of the High Court (here) it will be a Tier 3 Judge. It could be the President or the Vice-President of the Court of Protection. Otherwise it will be a High Court Judge who also sits in the Family Division of the High Court. All medical treatment cases are heard by High Court Judges. There are no clear rules about when other cases will be allocated to a High Court Judge, but generally speaking, the more complex the case, the more likely it is to be heard by a High Court Judge. Tier 2 judges are Circuit Judges, and include the Senior Judge of the Court of Protection (Judge Hilder). Tier 1 judges are District Judges. Generally, cases listed at First Avenue House (here) and the regional cases listed in CourtServe are before Tier 1 and Tier 2 judges.
P. All Court of Protection cases are about a person whose mental capacity is in question. That person is routinely referred to as P, although during a hearing they may be referred to by their actual name or by their initials. P is almost always a party to the proceedings in a welfare or medical treatment case, but may not be a party in a case that is about financial matters. If P is a party, P will often have a litigation friend – that means someone who can instruct lawyers on P’s behalf, if P lacks the mental capacity to do so him or herself. Very often, the litigation friend is a professional – either the Official Solicitor, or a paid advocate[CK1] . Sometimes the litigation friend may be a family member, friend or carer, someone P had appointed with a lasting power of attorney, or a court-appointed deputy.
The Official Solicitor. The Official Solicitor is a real person – presently Sarah Castle. Her department employs a number of solicitors and one of these solicitors will be appointed for each case. That solicitor will then instruct a solicitor from an external company in most cases – although in medical treatment cases the Official Solicitor’s office generally doesn’t use external firms. What this means in practice is that as well as P, you may have P’s solicitor (instructed by the Official Solicitor) and P’s caseworker within the Official Solicitor’s office, who is also a solicitor.
Relevant Person’s Representative (RPR). If P is subject to a deprivation of liberty authorisation under the Deprivation of Liberty Safeguards in Schedule A1 to the MCA 2005, they must have an RPR. The RPR could be a friend or family member, or an independent advocate. Sometimes RPRs act as litigation friends in the Court of Protection. They could instead be a party to an application in their own right.
Accredited Legal Representative (ALR). The court can decide to appoint an ALR under rule 1.2 of the Court of Protection Rules as an alternative to a litigation friend or as another way to ensure that P’s views are before the court. An ALR is a solicitor, barrister or chartered legal executive who has completed a training course run by the Law Society.
Statutory bodies. There is very often a public authority involved in a Court of Protection case. This might be a local authority who owes duties to P under the Care Act 2014 (to provide social care services), or through the deprivation of liberty system. If P is in receipt of NHS Continuing Healthcare, then a CCG might be the relevant public body. If the case is about medical treatment, then the NHS Trust involved is likely to be a party. Sometimes there may be two NHS Trusts, if P is also a detained patient under the Mental Health Act 1983 and the dispute is about treatment for a physical condition in a general hospital.
Other people. Depending on the issues raised by the case, there may be other parties including members of P’s family, P’s partner or friend, a court-appointed deputy, P’s attorney, a care home or a supported living provider. Only parties are formally permitted to address the court, although sometimes a judge may want to ask someone who is attending a hearing for their view even though they are not a party to the proceedings – for example if P’s support worker is present.
Witnesses. People who have written statements for the court or have prepared expert reports may be required to give their evidence orally and be cross-examined. These people could be parties to the proceedings, or employed by a party – for example a doctor or social worker. Or they could be a member of P’s family, or a friend of P. Or, they could be an expert who has been required to prepare a report for the court. Expert reports about P’s capacity and best interests are often required and can be provided by independent experts – commonly psychiatrists, psychologists, hospital doctors and social workers, or by Court Visitors, who are psychiatrists and social workers who are on a panel of experts that the court instructs.
Terminology. The person who issued the application is called the applicant. Everyone else is called a respondent. If there are a number of respondents, they are called the first, second, third, fourth respondent – and so on.
Order of speaking. Usually, the applicant speaks first, through their barrister. They should introduce everyone who is at the hearing. There will often be more than one person for each party – a barrister, a solicitor, the party themselves, and potentially other people such as the manager of P’s assigned social worker, P’s advocate and so on. When a witness is being questioned the party who is calling that witness starts off, and is usually permitted to ask the witness one or two questions to expand on what is in their written statement. Then the other parties can cross-examine the witness. The person representing P tends to ask questions last. The party who called the witness may have some questions in re-examination, to clarify matters that arose in cross-examination. The judge may also want to ask the witness questions.
Victoria Butler-Cole QC is a barrister at 39 Essex Chambers where she specialises in health and social care law, including the Court of Protection.