A revolution is under way in the Court of Protection. It has been a while coming but is now gathering pace. The Mental Capacity Act 2005 gave birth to the court in its new form, adding ‘health and welfare’ powers to protect some of the most defenceless citizens, but its birth was still not complete. In particular, jurisdiction to challenge the fundamental issue of detention under the MCA was a belated add-on following HL v UK 45508/99  ECHR 471.
However, the road to practical implementation of these new powers is not easy. It has now reached a fresh peak in the Supreme Court’s decision of Cheshire West  UKSC 19, putting the critical definition of deprivation of liberty back on an effectively objective basis.
The publication of any new book in this area of law would be significant, but the Court of Protection Handbook is in a league of its own. Its aim is not only to provide a comprehensive guide to practice and legal developments but also to be a hands-on aid from the user’s view point. As president of the court Sir James Munby indicates in his foreword, this book can be a tool for those litigants in person who are unable to obtain legal aid. The tone of this approach is further set by an opening chapter from Mark Neary (pictured), the famous LiP who successfully fought for justice for his son Steven in the court, mostly without legal aid.
Throughout, practical steps are meticulously set out with an admirable avoidance of jargon, and when this is unavoidable explanations are usually offered. A substantial number of precedents are available, as are clear flow charts to detail the steps necessary in proceedings and straightforward guidance on how to prepare for cases. Even the thorny issue of making applications for those detained under the MCA is tackled, as are the possible steps in avoiding litigation in the court.
Authors: Alex Ruck Keene, Kate Edwards, Professor Anselm Eldergill and Sophy Miles
Publisher: Legal Action Group (£48)
As the experienced authors point out, the majority of the court’s work remains property and affairs applications, and such cases are also dealt with in a clear and simple manner. However, it is the growing number of health and welfare cases which necessarily occupies the majority of the book. Here legal aid is often perilously difficult to obtain, and families and friends frequently have to battle with public bodies armed with substantial resources and experienced legal professionals.
This book is a real practical aid in this struggle. This ‘on the ground’ approach is of course also of great assistance to hard-pressed legal aid practitioners – or indeed any practitioners who regularly deal with the court.
This could not have come at a better time. Estimates of those affected by the Supreme Court’s decision vary wildly but almost certainly at least tens of thousands are now brought into scope. Armed with this handbook, at least some of the court’s mystery will be stripped away for its new users and it is to be hoped real rights delivered to its most vulnerable subjects.
It can truly be said this book is a further step in the COP’s revolution – with the court’s door now just a little more open.
Richard Charlton is president of the Mental Health Lawyers Association and director of Richard Charlton Solicitors