Court of Protection Practice in light of Covid-19
On 13th March 2020, Mr Justice Hayden issued guidance relating to the question of judges and legal advisors visiting P, signalling that visits to P should only be made where that is assessed as absolutely necessary. The importance of creative use of technology including Facetime; Skype/business Skype conferencing; and telephone conferencing was emphasised and it was made clear that visits to care homes are to be strongly discouraged.
Attendance at Court
On 18 March 2020 further guidance was issued in light of the updated government advice from Public Health England. It is noted that, for the foreseeable future, some hearings will need to be adjourned or to take place remotely. For this reason, as well as many practical ones, the approach in the Court of Protection for the time being will be as follows:
- Hearings with time estimates of 2 hours or less will be conducted by telephone. The applicant should make the necessary arrangements as set out in COPGN5;
- Hearings with time estimate of more than 2 hours will, in principle, proceed unless and until further guidance or specific application in the case (which will be decided by the judge hearing the case). There should be an invigorated determination to move forward at directions hearings by agreement wherever possible, but without compromising the interests of the client.
- It is likely that there will be an increase in the number of hearings being conducted remotely either in whole or in part. All practitioners must consider the range of options open by use of skype, telephone cons, etc
- Where hearings are to be conducted by telephone or by skype, the court listings will be published in advance as usual and any updated guidance will be made public.
This position will be reviewed as and when circumstances develop. Mr Justice Hayden notes that he is confident that there will be many cases in which practitioners will be able to agree Directions Orders, at interim stages, without live hearings being required.
Further guidance was issued on 24 March, to the effect that no hearings which require people to attend are to take place unless there is a genuine urgency and it is not possible to conduct a remote hearing.
The pressure on court staff is barely sustainable and every sensible effort to alleviate it should be seen as a professional imperative. It is emphasised that the viability of the Court depends on the availability of a very small team of administrative support and that this should be borne in mind throughout. The Court is presently only able to use Skype in limited circumstances but this is being considered further. Separate practical guidance is anticipated and there is already a simple user guide on the Judicial Intranet.
It appears that a number of issues have already been identified and addressed by the Court. The guidance contains suggested solutions including in relation to electronic signatures and bundles, and notification requirements. Of particular interest will be the following comments made in relation to capacity assessments conducted by video:
The assessor will need to make clear exactly what the basis of the assessment is (i.e. video access, review of records, interviews with others, etc.) Whether such evidence is sufficient will then be determined on a case by case basis. It is noted that GPs are rapidly gaining expertise in conducting consultations by video and may readily adopt similar practices for assessments. Careful consideration will need to be given to P being adequately supported, for example by being accompanied by a “trusted person.” These considerations could and should be addressed when the video arrangements are settled. It should always be borne in mind that the arrangements made should be those which, having regard to the circumstances, are most likely to assist P in achieving capacity.
Core Working Group – Covid-19
In order to look at ongoing interim solutions focusing on helping the Court to operate efficiently in the course of the present health crisis, a Core Working Group (Covid-19) is to be established. It is envisaged that this will comprise a small group which will include judges and representatives of the profession. We will of course provide updates in relation to this as appropriate.