25th April 2018

Recently a Judge in the Court of Protection gave permission for blood samples to be taken from Sergei and Yulia Skripal, who are both in a coma in hospital after the nerve agent attack in Salisbury, so that tests can be carried out by chemical weapon experts.

But what is the Court of Protection? 

It is a court in England and Wales which was set up in 2007 by the Mental Capacity Act 2005. It must also make decisions that respect people’s human rights under the Human Rights Act 1998 such as the right to respect for private and family life. It makes decisions on behalf of people who can’t make their own decisions because they have something wrong with their brain. In the Skripal case they both remain heavily sedated and are unable to communicate. Other examples of people who can’t make their own decisions would include people suffering from a brain injury, learning disability or dementia.

The Court of Protection can decide whether or not a person can make their own decisions, i.e. whether they have “capacity” to make their own decisions, and in the event the court decides the person lacks such capacity the court can make a decision for that person which is known as a “best interests” decision.  In making a best interests decisions the court will as far as possible find out what that person’s wishes are as well as taking into account the wishes of people who care for the person such as family and carers. However, it is not the case that the Court of Protection makes decisions for all people who lack capacity. In most cases decisions will be taken by family and carers who will decide what is best. Occasionally there can be disputes between family, carers and professionals such as social workers, doctors or nurses as to what is in a person’s best interests e.g. whether a person with dementia should be moved into a care home against their will. If an agreement cannot be reached then the court should be asked to make a decision.

The court will gather evidence such as witness statements and in some cases reports from experts. The Court of Protection can make decisions about someone’s welfare e.g. where they should live, who they should be allowed to have contact with and what care they should receive, property and financial affairs and whether someone who lacks capacity should be given serious medical treatment.

The court can authorise the deprivation of liberty of a person in a wide range of health and social care settings as well as in a person’s own home.  It can also review the lawfulness of authorisations of detention issued by local authorities and health bodies under the deprivation of liberty safeguards (DoLS). When it was established it was envisaged the court would hear only a couple of hundred health and welfare cases each year. In reality it is a rapidly expanding jurisdiction and by 2016 it received more than 4000 health and welfare applications with numbers expected to continue to rise.

Ben Hoare Bell LLP has specialist Court of Protection Solicitors who can advise you on issues surrounding the Court of Protection. To speak to a Solicitor please contact us on 0191 275 2626 or email advice@benhoarebell.co.uk

Please note that this advice was correct at the time of writing. However there may have been changes in the law or procedure since that date. If you are in doubt you should obtain up to date legal advice.