The Court of Protection operates under its own procedures and is in many respects a separate regime from the remainder of the Civil Court processes. Very distinct legislation applies to the way in which local authorities and local NHS Trusts carry out their own protective functions in relation to protected parties – that is to say, people who lack capacity.
Application of the Equality Act on Court of Protection proceedings
However, that does not mean that wider English law does not apply, or that it cannot be applied by the Court of Protection. One such example is the Equality Act 2010, and specifically section 149 which provides:
(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
At all times, when dealing with all manner of cases concerning protected parties, public bodies have a duty not to act in a discriminatory manner. Under the Equality Act, a person may experience discrimination if they are treated a certain way because of a “protected characteristic” they hold. Protected characteristics are:
- Disability; Gender reassignment;
- Marriage and civil partnership;
- Pregnancy and maternity;
- Religion or belief;
- Sex; and
- Sexual orientation.
This is just as relevant in the Court of Protection as it is in other aspects of the English legal system.
Recent case law
The recent decision in Cumbria County Council v A  EWCOP 38 provided a useful reminder of the need to consider equality legislation.
In this particular case, the local authority wanted to stand down as deputy for seven specifically chosen protected parties, with an experienced panel deputy having agreed to step into the role. Local authorities can act as deputies for protected parties in certain specified circumstances – often where there is no other suitable candidate and the cost of appointing a professional would be expensively prohibitive.
However, no deputy can simply stand down and Mr Justice Hayden made this clear. It is necessary to apply for the Court’s permission under section 49 of the Mental Capacity Act 2005 and the Court has the power to order both the Office of the Public Guardian and a special visitor (capacity expert) to investigate, so as to ensure that the change of deputy is in the best interests of a protected party.
In this particular case, the parties recognised the need to ensure that the local authority had not selected the seven protected parties on the basis of any protected characteristics as local authorities have a duty to act in a non-discriminatory manner. For example, they cannot seek to back out of deputyships simply because a protected party has a specific disability involving enhanced need (and therefore enhanced resources), because of a language or cultural barrier, or because of that person’s age or sexuality.
Although the Court of Protection cannot impose any remedy for a breach of the Equality Act, it can and should ensure that local authorities and local NHS Trusts have complied with it, failing which individuals who are adversely affected can bring causes of action in the High Court.
How can Nelsons help?
If you have any questions regarding the subjects discussed in this article, please contact Lewis or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.