Good practice guidance on accessing the Court of Protection
Preparing for and attending a hearing
If they have not done so already, the person or their litigation friend may decide to instruct a solicitor at this point. The case management process will not be the same for every case that is heard at the Court of Protection. If a solicitor has been instructed they will advise the person/litigation friend on each part of the case as it progresses. The following section is intended to provide a guide to the key stages of preparing and attending a hearing.
The court decides what will constitute the evidence for the case. They will send directions to the applicant, their representative and anyone else identified as a party, setting out:
- the issues of the case that will require evidence
- what evidence is needed to decide those issues
- which parties will provide this and in which format.
Disclosure means stating that certain documents exist. The court may, either on its own initiative or on the application of another party to the case, make an order for ‘general’ or ‘specific’ disclosure.
General disclosure is an order from the court that a party must:
- disclose any documents that could be used to support the person’s case
- disclose any documents that could be used to oppose the person’s case.
Specific disclosure is an order from the court that a party must:
- disclose a particular document or a type of document, for example bank statements
- look for a particular document in accordance with the directions of the court order, and disclose any document located as a result of that search.
If a request for disclosure is received, parties must draw up a list of the documents they have that fit into that particular category. This list must be sent to all other parties, and a copy sent to the court within seven days of service. If new documents come to light as the case continues, these must be added to the list and the updated version sent to all other parties and the court.
Parties have a right to see any document in the list. If a party wants to look at a document they must write to the relevant party who disclosed it and request a copy. They have a 14-day time limit to make it available.
If a party thinks they have a right or duty to stop another party looking at a particular document, they must write to them explaining why, for example this could be for reasons of data protection. If the party who is requesting it disagrees with these reasons, they should apply to the court for a decision about whether it can be withheld or not.
The court may make an order for general disclosure. As a party to the case, an IMCA put their IMCA report, email correspondence, case notes and supervision record on the list. These could then be requested by another party. The IMCA must send copies to the party within 14 days.
Reports under section 49 of the MCA Open
The court may request that the following agencies submit a report on a particular issue relating to the person:
- the Public Guardian
- a Court of Protection visitor
- a local authority or NHS body officer or employee
- any other person that the local authority or NHS body considers appropriate (this could include an IMCA, even if they are not joined as a party).
The court will give directions explaining the subject matter they wish to be covered in the report. Further information about content of section 49 reports can be found in Practice Direction 14E (PDF).
The report will be sent to all of the parties involved. If a party wishes to question the person who has written the report, they can send the questions they want to ask to the court on a COP9 form. If the court decides that the questions are appropriate, it will put them to the report writer and ask for a response, which will be sent to all of the parties.
John lives alone and has mental health needs. His flat is constantly filthy and he neglects his personal care. Serious concern has been raised about his welfare and the local authority does not believe he has the capacity to refuse the support it has offered him. John disputes this and his sister Fran has made an application to the court to dispute the decision that John lacks capacity to make decisions about his welfare.
The court requests that the local authority submit a section 49 report. The local authority nominates John’s social worker Peter, to produce this. The court provides Peter with guidance on how to complete this report and Peter writes and submits the report accordingly. A copy of the report is sent to all parties.
If there is an issue that needs to be decided by witness evidence, this can be provided orally at a final hearing or in writing if there is no hearing. An IMCA may be called as a witness.
All witnesses must produce a witness statement. A witness statement is a written account of events and opinions. It provides the evidence that a person would be allowed to give if directed to do so at a hearing. If a party intends to rely on a witness statement, the court will give directions about how this should be served on other parties. A witness statement is written by filling out a COP24 form.
If a witness is called to give evidence at a final hearing, their witness statement is the main evidence that will be relied on and that they can be questioned about. The court may allow a witness to expand on the information submitted in their witness statement, particularly if something has changed since the witness statement was made. The court may allow a witness to give evidence through a video link or by other communication technology.
If a party wants a person to attend the court hearing and give oral evidence, they must apply to the court to ask it to issue a witness summons to the person. This should be done on a COP9 form and must give the details of the person, and explain the reasons for wanting the proposed witness to appear.
The court will make a decision based on the application. If the court issues a summons, it is the responsibility of the party who has made the application to serve this on the witness and the other parties to the case. As long as this is done seven days before the date on which the witness is required to attend before the court, the summons is binding on that witness, and the witness must attend.
The witness should be offered reasonable expenses at the time at which they receive the summons.
Sometimes the court will decide that a person should give evidence before the hearing takes place and this evidence is used at the hearing. This is called a deposition. The court will send further information about when and where this will take place.
James has severe learning disabilities and is suffering from bowel cancer. He does not have capacity to make decisions about his treatment. Lucy is appointed as James’ IMCA. The doctor treating James believes he should be treated with chemotherapy and radiotherapy, but other hospital staff disagree that this is in his best interests. The hospital trust makes an urgent application to the Court of Protection and a hearing is scheduled to make a decision about whether James should have medical treatment. Lucy is called as a witness.
Getting ready for the hearing Open
Whether attending the hearing as an applicant, witness or party to proceedings, it is very important to ensure that you:
- know the date and time of the hearing, where the court is and how to get there
- have done everything the court directed to prepare the case
- have sent the documents requested to the court
- have all the documents you want to use at the hearing ready.
Attending the hearing Open
It is important to arrive in good time for the hearing. The hearing will not start before the time stated on the notice of the hearing, but may start later than expected, so you should be prepared to wait.
On arrival, you should report to the receptionist or the court usher. A note will be made that you have arrived and you will be told where to wait. The court usher will call out the name of the case when the case is ready to begin.
Hearings can either be ‘in public’ or ‘in private’. Generally, Court of Protection hearings are heard in private, which means that, unless the court rules otherwise, the only people allowed to attend are the parties, the person who is the subject of the proceedings (whether or not a party), litigation friends, legal representatives and court staff. The hearing may take place in either a court room or the judge’s room. All court proceedings are recorded.
The judge will normally want to hear first from the applicant, and then the respondent. Seeing someone give evidence helps the judge to decide whether or not that person is telling the truth.
Witnesses will normally be asked to swear (take an oath) that what is said or used as evidence to decide the case is true. An oath is taken on the appropriate holy book. If a witness objects to being sworn, they can give a promise to tell the truth (called ‘affirming’). If they intend to do this, or take an oath on a particular holy book, good practice is to inform the usher before the hearing begins.
Each party, or their solicitor, will be given an opportunity to speak and ask the other person (and any witnesses) questions. This is called cross-examination. The judge may also ask you some questions.
A party to the case may have instructed a barrister, a specialist advocate. In this case, they will be asking questions rather than their solicitor.
Elizabeth is a 63-year-old woman with arthritis and mental health needs. She is often in pain and lacks mobility. She lives at home with her daughter, Lola. Over the last 18 months, Elizabeth has become uncooperative, making it very difficult for the local authority to provide the services she needs for the right amount of time each day.
The local authority has taken the view that Elizabeth is capable of deciding whether to cooperate and accept the care services offered to her. Lola disagrees and believes that her mother lacks the capacity to decide whether to accept their services. The local authority makes an application to the court for a decision about Elizabeth’s capacity.
Lola is called as a witness. She has completed a witness statement prior to the hearing and this provides the main evidence of her view about her mother’s capacity. She attends the hearing and is asked questions by both the local authority solicitor and the judge. These questions are based on the evidence she has provided in her witness statement.