Court of Appeal clarifies role of the Court of Protection

Sam Karim KC represented the Official Solicitor in the Court of Appeal in what is described as a “highly abnormal” Court of Protection (CoP) case in Re A (by her litigation friend, the Official Solicitor) [2024] EWCA Civ 572 judgment being handed down on 23 May 2024.

The appeal arose from the decision in Re A (Covert Medication: Residence) EWCOP 19, where Poole J decided to cease covert medication, inform A that she had been covertly medicated and to return her home. Upholding Poole J’s decision in its entirety, the Court of Appeal (Peter Jackson LJ) made significant observations, namely that:

1. the CoP exists to make particular decisions/actions, it is not a supervisory court; adopting the ratio of Baroness Hale in N v. ACCG [2017] AC 549 at [24]; the CoP is not the guardian of P [90]

2. the Court’s role is inquisitorial and the judge can make a decision not limited to choosing between the position of the parties [91]

3. it was considered “irrelevant” whether any party recommended the outcome decided by the judge, the CoP , “… must in any event exercise its best interests jurisdiction…”, bearing in mind that the CoP, “is under considerable pressure, and it was perfectly proper for the judge to proceed with making a decision as opposed to incurring unnecessary delay by directing another hearing”  [68]

4. the exceptional length of time was bound to influence the court’s approach as to when a final decision should be made [89]

5. oral submissions have a “particular value” in difficult cases, and it is “good practice” for the court to alert the parties that it is considering an outcome not positively sought [99].

The judgment is available at https://caselaw.nationalarchives.gov.uk/ewca/civ/2024/572 .

Sam Karim KC and Aisling Campbell have previously presented a bitesize seminar on the first instance decision, which can be viewed at https://www.youtube.com/watch?v=G5HMLM6MNIg .

Sam is the head of the Court of Protection team at Kings and is consistently been involved in high profile and test cases in the CoP. He is recognised by legal directories as a Band 1 Silk. If you require further information please contact Steve Loxton on [email protected] .