Cost of Court of Protection cases “may have chilling effect”, research says

The cost of welfare proceedings in the Court of Protection is “a very serious concern” because of the “very real threat of a chilling effect” on cases being brought by local authorities, groundbreaking empirical research has found.

It said also that individuals subject to the court’s jurisdiction (referred to as P) and those close to them may be unable to challenge decisions made in their best interests because they “may be literally unaffordable if they are not eligible for legal aid”.

The study of the CoP’s exercise of its welfare jurisdiction by Cardiff University – and funded by the Nuffield Foundation – used freedom of information requests to calculate that a typical personal welfare case costs a local authority in the region of £13,000 and a section 21A (deprivation of liberty) review around £10,000.

“These estimates do not take into account the considerable time required of social care staff by litigation,” the report said. “The costs of legal aid certificates were also very high, suggesting that a typical CoP welfare case can easily cost the public purse tens of thousands of pounds. The costs to self-funding litigants will be even higher.”

The detailed study also showed the rising tide of CoP litigation. It said that, when the court was established, it was anticipated that it would hear only a couple of hundred health and welfare cases each year.

“Yet the number of cases heard under the CoP’s health and welfare jurisdiction has increased dramatically since it was established. In 2008, the number of welfare related applications received by the CoP was fewer than 1,000. In 2016, it is greater than 4,000 and expected to continue to rise.”

Cases were also taking longer, often several months, which researchers described as a “very lengthy time for a review of detention”.

The researchers concluded: “Following the Law Commission’s recent proposals for reform of the [Mental Capacity Act], and in particular the possibility that the CoP’s jurisdiction over deprivation of liberty may undergo radical reforms, we hope that policymakers will keep in mind the serious problems reflected in this report regarding the cost and duration of CoP welfare proceedings, the difficulties that P and those acting on P’s behalf may have in accessing justice, and in facilitating the full participation of P in proceedings in line with their human rights.”

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Published date
12 Oct 2017

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