If one of your relatives lacks mental capacity (usually due to a mental health condition or long term illness), then the Local Authority has a duty of care towards that individual. On the one hand, the Local Authority can provide support to a protected party (P) and their family, but it has a responsibility to ensure that P is receiving adequate care, and suitable accommodation. This does mean that if the Local Authority has concerns, it can apply to the Court of Protection for various orders, including orders justifying the removal of P from his/her home if it is believed to be in their best interests.
When this happens, as a carer or relative you can sometimes feel marginalised, blamed or even attacked. It is important to remember that P’s best interests must come first, but that is not to say that there is nothing you can do when the Local Authority steps in. As a relative, you have a right to be heard in Court of Protection proceedings.
Relative rights in Court of Protection proceedings
The Court of Protection operates on its own rules, and under an entirely different procedure from the County Court. It is less adversarial than the County Court but that is not to say that Court of Protection cases cannot become heated and difficult when the parties involved take opposing sides. The proceedings have to be served on those providing care for P, which means that when an application is made, you should be given copies of all the Court documents and included as a party to the proceedings. If you have not been included and feel you should have been, you can apply to the Court and ask to be joined.
As a party, you have the right to reply to the application by filing and serving witness evidence. Quite often, the Court will give you a deadline in which to do so and in emergency cases, it is particularly important to watch out for these deadlines. You don’t want to miss your chance. If you do receive Court documents, consider the evidence from the Local Authority very carefully, and the reasons why they are making the application. If you believe they are wrong, or if you believe that you can propose a better alternative (i.e. a different care home or living environment to the one the Local Authority is suggesting), you should explain your reasons in your witness statement and attach to that statement any documentary evidence.
If you are unsure how to put together a witness statement, you should seek independent legal advice. Some solicitors deal with mental health law and others who deal in litigation will have some expertise in Court of Protection claims. Presenting your evidence in the right way can sometimes make a big difference.
Many relatives feel that because the Local Authority have not considered their side of the argument, the Court will not listen to them either. This is not necessarily the case however. Whilst the Local Authority may be acting in what they considered to be P’s interests by bringing the application, they are not representing P – usually an independent advocate will be appointed to do this. An advocate is usually someone neutral and will not be a family member, and they tend to consider the arguments put forward by all parties. If the Local Authority’s approach appears heavy-handed, it will be challenged to explain its position by the advocate.
Overall, the Court of Protection must make a decision based on whatever it considers to be in P’s best interests. The Court will consider not only the witness statements of those involved, but will expect to see medical evidence (usually a report from P’s doctor or an expert psychiatrist). There may be two or three hearings in many Court of Protection cases before a final decision is made and even then, the matter can still be reviewed a year or so later.
How Can Nelsons Help?
If you have any questions in relation to relative rights in Court of Protection proceedings, please contact Lewis or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.