Law and Rights
Update 4th May: Committal for Contempt of Court - Practice Direction of 3rd May
The Court of Protection has been mentioned a few times on this blog - for example, here and here.
The court is in the news again because it has come to light that Wanda Maddocks was committed to prison for contempt of the court - Daily Mail 25th April - where it is said that, when judgment against her was handed down, she was not present in court and not represented by a lawyer. It is also said that sentencing was not made public for six months.
In this post, I do not intend to comment on the Mail's article. I am grateful to the Small Places blog for bringing my attention to the judgment - actually published last autumn - Stoke City Council v Maddocks [2012] EWHC B31 (COP). Let's look at a few facts about the court.
1. Parliament established the court by enacting Part 2 of the Mental Capacity Act 2005. It came into existence from 1st October 2007 and replaced earlier arrangements often confusingly referred to as court of protection proceedings.
2. The court is a superior court of record which, in practice, means that it has contempt of court powers which may be used to enforce its orders as well as to deal with any disorderly behaviour in the court.
3. It has the same powers, rights, privileges and authority as the High Court. A general description of the court's work is available via the Judiciary website. It is a specialist court for all issues relating to people who lack capacity to make specific decisions. The Court makes decisions and appoints deputies to make decisions in the best interests of those who lack capacity to do so.
4. Proceedings in the Court of Protection are normally in private but the court may order an open hearing. Furthermore, reporting restrictions can be applied. These matters were addressed by Baker J in W v M, S, an NHS Trust and Times Newspapers [2011] EWHC 1197 (COP). Note what the learned judge said:
'The Court of Protection is concerned with the weak and the vulnerable, not the rich and the famous. Its jurisdiction arises out of the need to make decisions on behalf of those who lack the capacity to make decisions for themselves. For understandable reasons, Parliament has therefore decided that hearings in the Court should usually be held in private.'
5. There are Court of Protection Rules
6. The Rules (Part 21) deal with applications to the court for a person to be held in contempt. See also the Practice Direction on Enforcement.
7. When a contempt application is made to the court, notice must be given to the person claimed to be in contempt though the court may dispense with notice. Also, the person has a right to give oral evidence to the court - e.g. to show why he or she should not be committed. The hearing should usually be in public and certain information must usually be published. See Rules 185 to 194.
8. Many judgments of the court are published with the parties anonymised - see Bailii Court of Protection. The judgments amply illustrate the very difficult and sensitive issues handled by the judges and the meticulous attention to detail.
9. See Court of Protection Deputies (i.e. someone appointed to make decisions for another who is unable to do so on their own) and Court of Protection Visitors.
Criticisms and Comments:
Calls for reform have been made - see the view of John Hemming MP in February 2011 and The Guardian November 2011 - Court of Protection: defender of the vulnerable or shadowy and unjust.
The Guardian Law pages offer several articles about the court and its operation.
There is an All-Party Parliamentary Group on Family Law and the Court of Protection.
Daily Mail 28th April 2013 - looks at the assets managed via the court
Addendum:
Please see The Small Places blog for a view on the Maddocks case.
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Law and Rights
Court of Protection ~ an overview
The Court of Protection has been mentioned a few times on this blog - for example, here and here.
The court is in the news again because it has come to light that Wanda Maddocks was committed to prison for contempt of the court - Daily Mail 25th April - where it is said that, when judgment against her was handed down, she was not present in court and not represented by a lawyer. It is also said that sentencing was not made public for six months.
In this post, I do not intend to comment on the Mail's article. I am grateful to the Small Places blog for bringing my attention to the judgment - actually published last autumn - Stoke City Council v Maddocks [2012] EWHC B31 (COP). Let's look at a few facts about the court.
1. Parliament established the court by enacting Part 2 of the Mental Capacity Act 2005. It came into existence from 1st October 2007 and replaced earlier arrangements often confusingly referred to as court of protection proceedings.
2. The court is a superior court of record which, in practice, means that it has contempt of court powers which may be used to enforce its orders as well as to deal with any disorderly behaviour in the court.
3. It has the same powers, rights, privileges and authority as the High Court. A general description of the court's work is available via the Judiciary website. It is a specialist court for all issues relating to people who lack capacity to make specific decisions. The Court makes decisions and appoints deputies to make decisions in the best interests of those who lack capacity to do so.
4. Proceedings in the Court of Protection are normally in private but the court may order an open hearing. Furthermore, reporting restrictions can be applied. These matters were addressed by Baker J in W v M, S, an NHS Trust and Times Newspapers [2011] EWHC 1197 (COP). Note what the learned judge said:
'The Court of Protection is concerned with the weak and the vulnerable, not the rich and the famous. Its jurisdiction arises out of the need to make decisions on behalf of those who lack the capacity to make decisions for themselves. For understandable reasons, Parliament has therefore decided that hearings in the Court should usually be held in private.'
5. There are Court of Protection Rules
6. The Rules (Part 21) deal with applications to the court for a person to be held in contempt. See also the Practice Direction on Enforcement.
7. When a contempt application is made to the court, notice must be given to the person claimed to be in contempt though the court may dispense with notice. Also, the person has a right to give oral evidence to the court - e.g. to show why he or she should not be committed. The hearing should usually be in public and certain information must usually be published. See Rules 185 to 194.
8. Many judgments of the court are published with the parties anonymised - see Bailii Court of Protection. The judgments amply illustrate the very difficult and sensitive issues handled by the judges and the meticulous attention to detail.
9. See Court of Protection Deputies (i.e. someone appointed to make decisions for another who is unable to do so on their own) and Court of Protection Visitors.
Criticisms and Comments:
Calls for reform have been made - see the view of John Hemming MP in February 2011 and The Guardian November 2011 - Court of Protection: defender of the vulnerable or shadowy and unjust.
The Guardian Law pages offer several articles about the court and its operation.
There is an All-Party Parliamentary Group on Family Law and the Court of Protection.
Daily Mail 28th April 2013 - looks at the assets managed via the court
Addendum:
Please see The Small Places blog for a view on the Maddocks case.
- Why We Need Our Human Rights (3) - Mental Health
The Convention has had a profound impact upon the way in which those with mental health problems are treated and cared for. However, this is an important and difficult area where there continues to be room for considerable improvement. ...
- A Mother Was Given A Caesarean Section While Unconscious
Updated 4th December Christopher Booker in Sunday Telegraph (1st December 2013) - "Operate on this mother so that we can take her baby" - 'A mother was given a caesarean section while unconscious - then social services put her baby into care.' ...
- Forced Marriage ~ Enforcement Of Protection Orders
May a Police Force apply for a person to be committed to prison for contempt of court for breach of a Forced Marriage Protection Order (FMPO) when the police were not the applicants who obtained the order? The answer is NO according to Holman J...
- Liberty: Deprivation Or Restraint?
The Trinity Law term ran from 7th June to 29th July and produced some important decisions. The Michaelmas Law Term does not start until 3rd October so the senior courts will be relatively quiescent until then. This provides an opportunity...
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Stephen Neary is aged 20. He is autistic. He lived with his father (Michael) until his father had a serious bout of influenza and was temporarily unable to care for him. Michael arranged for Stephen to be cared for at a local authority...