Calls for case management reform in the Court of Protection by Sam Harman

Family Law|July 28th 2014

A Family Division judge has called for changes to the Court of Protection’s case management system.

At the High Court in London, Mrs Justice Parker urged widespread reforms into how hearings are practically approached and dealt with. The Court of Protection makes rulings on behalf of those unable make decisions regarding their own health and welfare.

Parker J’s wishlist includes an emphasis on the “factual” over the “theoretical”, true justice over distracting arguments of “increasing subtlety,” and the curtailing of evidence and legal expertise to an essential minimum. Her comments were not intended as (nor do they amount to) a potential set of specific, precise laws, but rather they reflect a general sentiment that the logistics and administration of the Court were in need of refinement.

The suite of recommendations arose following Mrs Justice Parker’s hearing of Re PB [2014], a case concerning a 79-year-old schizophrenic woman’s capacity to decide her care and residence arrangements with her husband.

The case, which began in February 2013, centred on the conflicting views of a Dr Barker, who argued that PB had sufficient psychiatric capacity, and Dr Khalifa, who by contrast, stated that PB’s condition impaired her use of information to the extent that legal capacity was lacking.

Having approved the prognosis of Dr Khalifa, Parker J then considered whether, under Section 2 of the Mental Capacity Act2005, there was the “clear causative nexus,” between the mental condition and the lack of capacity necessary to grant the Court jurisdiction to issue a “best interests determination.”

Yet even what seemed to be a reasonably specific legal crux was further split into numerous micro-trials. These included whether the mental impairment could only constitute the “nexus” if it was the sole cause of the lack of capacity; whether repeated unwise decisions constituted an inability to make decisions; and whether the use of “inherent jurisdiction” extended beyond “injunctive relief.”

In the end, Mrs Justice Parker ruled it lawful to control PB’s residence and contact with TB, her husband, despite the resulting deprivation of liberty. Her broader administrative opinion, though, was a result of her concern that the case had taken four whole days to resolve.

Consequently, Parker J called for improvements to case management, particularly the practicalities of day-to-day hearings. She argued that legal representatives of the vulnerable had a responsibility to focus on areas relevant to the facts of the case and that they should bear in mind court and public resources rather than pursuing every possible line of enquiry – a habit she said can often “paralyse” proceedings under the status quo.

In a similar vein, Mrs Justice Parker requested a time estimate for witness testimony, submission and judgement, as well as a chronology of dates essential to the case.


Sam Harman attended the Grammar School in Leeds and is hoping to read Philosophy, Politics and Economics at Christ Church, Oxford in the academic year 2014/15. His interests include debating, particularly moral aspects of law, as well as football, tennis and swimming.

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