Earlier this week I spent a day on a Court of Protection course. Just as we were all entering a post lunch semi-vegative state, up strode Wall LJ to the podium. He is both President of the Family Division and of the Court of Protection. Readers of this blog may find his brief address interesting. I don’t have a complete note of it, but I scribbled as furiously and as accurately as I could, leaving out the bits I wasn’t madly interested in.
He began with an observational joke: that there are about ten years of work for the legal profession in every new act of parliament passed. He was talking about the Mental Capacity Act 2005, but I was thinking about the LASPO bill and what legal challenges may radiate from it (judicial reviews, funding appeals…).
I feel, he said, “Munby vulnerable” (picking up on a phrase coined in an earlier lecture to describe a vulnerable individual who does not lack capacity per se but whose will is overborne by external circumstances). Don’t we all. Don’t we all.
And so it began. Jokes over, he got down to it (some paraphrasing):
“I encourage everyone who sits in the Court of Protection to publish their judgments on BAILII. I acknowledge it involves a great deal of work to correct and anonymise judgments but the benefit to the profession is huge. I am a great believer in the court sitting where it can in public. It is not an instinctive reaction from a Family Division Judge or in relation to matters which are essentially private. There is an advantage to the public to see how very difficult and sensitive cases are handled and the care that is gien. It doesn’t mean the parties have to be exposed to the full glare of publicity. I have sat in open court with the parties anonymised where it is a question of life and death. The press are very good at not doorstepping and people do remain anonymous.”
He went on to talk about the benefits of the CoP sitting locally so that justice could be done locally. He wanted to encourage people to participate in proceedings. That, he said, makes good sense where there is an unpalatable decision to be made. …
“I am irritated when those who criticise the Court of Protection and Family Justice System say experts are hired guns who say the payer dictates what they should say. That is a canard.
In RP v Notts CC a particular McKenzie friend alleged that a solicitor had forged all the documents in his file. In that case the expert was a joint instruction by the Local Authority and the patient. It was suggested that the report was purely for the benefit of the LA, said what the LA wanted and that the expert had deliberately falsified. I tried in my judgment to give a strong assessment of my views of the particular opinion set out on behalf of the person without noticeable effect. In my view the work done by those in the Court of Protection is done in good faith and designed so far as it can to assist P (the subject of proceedings). The way we treat people unable to make decisions is a hallmark of the system.”
The McKenzie friend in RP v Notts was of course John Hemming MP. You can read the judgment here.
I see Nicholas Wall has performed an Encore after another case, and received a certain amount of applause.
The much demonised John Hemming MP did not say the expert witness had deliberately falsefied a repor, but that the council concerened had imposed and expert witness who had returned a report that favoured them, as there was a conflict of interest. A second independent opinion would be needed.
The President of the Family Division should be aware of the problem that experts are indeed hired guns who say the LA or Guardian wants as an answer because of a conflict of interest.
It is unfortunately not a canard.
LA’s will go all out to impose their choice of expert and will not recommend anyone who will not give the opinion they want. this also includes competency to instruct a solicitor hearings. since once instructed by the official Solicitor, the person’s solicitor will be unable to mount a fighting defence.
However the Official Solicitor is beginning to refuse such cases.
This is because they rely on the huge sums now paid and want more commissions, there is a huge conflict of interest.
All of these faults appear to being replicated in the Court of protect, and we are beginning to receive a significant number of calls from families over their adult relatives although we do not do such cases.
Nicholas Wall and other senior judges believe in the superiority of the British system, with thits dual system of Guardian and Children’s Sol and are thus unable to see there are faults in it. and this would appear to extend to the Jointly Instructed Single Expert system.
Given this one must ask if Nicholas Wall should be sitting in the family Court at all, let alone taking on the presidency of the Court of Protection.
Hi Dick,
Regardless of whether John Hemming argued that the expert deliberately falsified a report or that an expert of the LA’s choice had returned a report that favoured them the point appears to me to be dealt with by the fact that the expert was jointly instructed. A party cannot be compelled to enter into a joint instruction with an expert not of their choice. It may have been a choice agreed to by the LA, but would also have been one agreed to by the lawyers acting for the person in question, albeit perhaps not agreed by her MP (or someone else’s MP?). In my experience there is often lively debate about the choice of expert and a good lawyer will be alive to the experts who, based on experience, may be likely to take a line which favours another party. In capacity cases the choice of expert is usually that of the solicitor acting for the person who is thought to be under a disability. What may happen is that the lawyer acting for a party may come unprepared for directions to be made appointing an expert, and if one is not armed with cVs dates and costs it can be difficult to argue against the instruction of a particular expert where no alternative is proposed and it is agreed that A joint expert is indeed required. In this the LA have no particular advantage. They are as likely to come ill / well prepared as any other party.
[…] addthis_product = 'wpp-262'; var addthis_config = {"data_track_clickback":true};By: Lucy Reed From: Pink Tape: Earlier this week I spent a day on a Court of Protection course. Just as we were all entering a […]