Health & Welfare Proceedings In The Court Of Protection – How Long Will It Take?

The Court of Protection has the jurisdiction to make decisions on any issue concerning the health and welfare of a protected party, i.e. an individual who lacks capacity to make a decision for themselves and no attorney is in place to make that decision on the protected party’s behalf. If you are one of a protected party’s relatives, or close associates, you may become involved in Court of Protection proceedings, and quite heavily involved if you believe that the protected party’s circumstances need to change and your view conflicts with, say, another relative or an official body such as a local authority.

How long do health and welfare proceedings in the Court of Protection take?

The Court of Protection can intervene in urgent circumstances (e.g. if the protected party is at risk of harm or abuse) and if the protected party’s situation is extremely serious, this can justify a responsible public body such as a local authority or NHS Trust from applying for an injunction.

Quite often, the family members who are most closely associated with the protected party will be notified but will get very little time to react. It is not uncommon for documents to be served the night before a Court hearing, giving relatives little opportunity to get legal representation, and even if they do they may not be able to speak at the hearing unless they apply successfully to become a party.

In all such cases, a second hearing will be listed quite quickly after the first one and usually within 28 days, to give the “respondents” time to prepare and reply to any evidence that has been served on them.

In less urgent circumstances when a health and welfare issue has arisen – and this can range from where a protected party lives and who with to the programme of care they receive, or tricky medical decisions – there are protocols to be followed before taking the matter to Court.

For matters of health and medical treatment, relatives are expected to try and reach an agreement with treating clinicians and social workers and it is only normally if this process does not work that the case will go to Court. Similarly, if there is a dispute over where a protected party lives or who the protected party sees, the party affected should set their position out in writing to their opponent, unless doing so would place the protected party at risk.

How many hearings will there be?

When Court proceedings begin, it is not untypical for there to be several hearings. The first hearing is usually a directions hearing, at which the Judge will consider the evidence filed by each party and send the parties away to produce more in relation to particular issues. Quite often, a protected party will be represented and the first hearing will be an opportunity for the Court to direct the protected party’s representatives (appointed by the Official Solicitor) to meet with the protected party, assess their needs and try to elicit any wishes that the protected party has.

In some cases, a contested hearing will be listed if the Court is being asked to decide where a protected party lives for example and there are two or three clear options on the table. However, if there are other issues such as a protected party’s care plan or contact with relatives, and these could have health implications, the Court will often review the case periodically and this can result in proceedings lasting well over a year.

Summary

In summary, every health and welfare case in the Court of Protection will differ and the process, timescale and cost varies according to a protected party’s needs and circumstances. Whilst the 2017 rules do provide some structure, the Court has considerable flexibility and it is important to remember that just as no protected parties are the same, few cases follow the same process from start to end.