Court of Protection
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The Court of Protection in
English law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, be ...
is a superior court of record created under the
Mental Capacity Act 2005 The Mental Capacity Act 2005 (c 9) is an Act of the Parliament of the United Kingdom applying to England and Wales. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity ...
. It has jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves.


History

The Court of Protection evolved from the Office of the Master in Lunacy, which was renamed the Court of Protection in 1947. Its jurisdiction derived from both the
Lunacy Act 1890 The Lunacy Act 1890 ( 53 & 54 Vict. c. 5) formed the basis of mental health law in England and Wales England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales ...
and De Prerogativa Regis of 1324, which gave the monarch authority over the property of 'idiots' and 'lunatics'. The Court of Protection was responsible for overseeing the management and administration of the estates of individuals who were unable to manage their own affairs, by reason of unsoundness of mind or infirmity. It was an office of the
Senior Courts of England and Wales The courts of England and Wales, supported administratively by His Majesty's Courts and Tribunals Service, are the civil and criminal courts responsible for the administration of justice in England and Wales. The United Kingdom does not have a ...
, later governed by the
Mental Health Act 1983 The Mental Health Act 1983 (c.20) is an Act of the Parliament of the United Kingdom. It covers the reception, care and treatment of mentally disordered people, the management of their property and other related matters, forming part of the men ...
. At that time the old Court of Protection was part of the old Office of the Public Guardian; the new Court of Protection and the Public Guardian are now entirely separate organisations with different responsibilities. The earlier Court of Protection dealt exclusively with financial matters, but the new Court of Protection was granted powers to deal with health and personal welfare issues, and has the same powers as the
High Court of Justice The High Court of Justice in London, known properly as His Majesty's High Court of Justice in England, together with the Court of Appeal of England and Wales, Court of Appeal and the Crown Court, are the Courts of England and Wales, Senior Cou ...
. The Court of Protection's powers are defined by the
Mental Capacity Act 2005 The Mental Capacity Act 2005 (c 9) is an Act of the Parliament of the United Kingdom applying to England and Wales. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity ...
, and was established by order of the
Lord Chancellor The lord chancellor, formally the lord high chancellor of Great Britain, is the highest-ranking traditional minister among the Great Officers of State in Scotland and England in the United Kingdom, nominally outranking the prime minister. The ...
through the ''Mental Capacity Act 2005 (Commencement No. 2) Order 2007''. The rules of the Court of Protection were established by order of the
President of the Family Division The President of the Family Division is the head of the Family Division of the High Court of Justice in England and Wales and Head of Family Justice. The Family Division was created in 1971 when Admiralty and contentious probate cases were remove ...
through ''The Court of Protection Rules 2007''. The offices and full-time Judges of the Court of Protection were originally located at
Archway Tower Vantage Point (formerly Archway Tower) is a 195-foot (59m) 17-storey residential apartment building above Archway Underground station, designed by Grid Architects, and owned and operated by Essential Living. History Archway Tower was built ...
, Junction Road, London. Since 9 January 2012, the Court was located in the Thomas More Building at the
Royal Courts of Justice The Royal Courts of Justice, commonly called the Law Courts, is a court building in Westminster which houses the High Court and Court of Appeal of England and Wales. The High Court also sits on circuit and in other major cities. Designed by Ge ...
on the
Strand, London Strand (or the Strand) is a major thoroughfare in the City of Westminster, Central London. It runs just over from Trafalgar Square eastwards to Temple Bar, where the road becomes Fleet Street in the City of London, and is part of the A4 ...
. In 2014, it was relocated to First Avenue House, 42-49
High Holborn High Holborn ( ) is a street in Holborn and Farringdon Without, Central London, which forms a part of the A40 route from London to Fishguard. It starts in the west at the eastern end of St Giles High Street and runs past the Kingsway and ...
, London WC1A 9JA. As of April 2017, the President of the Court of Protection was Sir James Munby, who is also
President of the Family Division The President of the Family Division is the head of the Family Division of the High Court of Justice in England and Wales and Head of Family Justice. The Family Division was created in 1971 when Admiralty and contentious probate cases were remove ...
, and the Vice-President was Sir William Charles.


Jurisdiction and powers

The Court of Protection has the power to decide if a person lacks capacity to make decisions for themselves, and then to decide what actions to take in the person's best interests. The Court has the power to adjudicate on deprivations of liberty, which includes depriving a person of liberty who is over 16, lacks capacity, and can be living at home. The Court of Protection has the power to appoint ''Deputies'', who can make decisions on behalf of the person who is deemed to lack capacity. The power to appoint Deputies is granted by Sections 15 to 21 of the Mental Capacity Act 2005.
Cardiff University , latin_name = , image_name = Shield of the University of Cardiff.svg , image_size = 150px , caption = Coat of arms of Cardiff University , motto = cy, Gwirionedd, Undod a Chytgord , mottoeng = Truth, Unity and Concord , established = 1 ...
noted that Deputies are most commonly appointed to deal with matters of property and finances, although the Mental Capacity Act 2005 allows for Deputies to make decisions on health and welfare. However, the Court of Protection either makes these decisions itself, and applications are often rejected under Sections 5 and 6 of the Mental Capacity Act 2005. Among its various roles the Court of Protection is responsible for determining disputes as to the registration of enduring powers of attorney, and Lasting Powers of Attorney, appointing new trustees, appointing deputies to manage the affairs of persons who do not have the mental capacity to make the relevant decisions, authorising certain gifts and making statutory wills. Examples of personal welfare issues determined by the court are decisions about where protected persons live, who they see and how they are cared for.


Criticism

Journalist
Christopher Booker Christopher John Penrice Booker (7 October 1937 – 3 July 2019) was an English journalist and author. He was a founder and first editor of the satire, satirical magazine ''Private Eye'' in 1961. From 1990 onward he was a columnist for ''The Su ...
wrote a series of articles in ''
The Daily Telegraph ''The Daily Telegraph'', known online and elsewhere as ''The Telegraph'', is a national British daily broadsheet newspaper published in London by Telegraph Media Group and distributed across the United Kingdom and internationally. It was fo ...
'' critical of the Court of Protection, calling it the "most sinister" and "most secretive" court in the United Kingdom. Booker reported several cases where elderly Britons were forced to hand over their assets to social workers and the courts. The increasing workload of the Court over the period 2008 to 2012 led to lengthy delays in making decisions involving finances of subjects of the Court. The personal difficulties arising from such delays have led to criticism of the Court.


Notable cases

In 2015, the Court of Protection ruled that a woman with six children and an IQ of 70 should be sterilised because another pregnancy would have been a "significantly life-threatening event" for her and the foetus due to her having a very thin uterus.


Gibraltar

The
court system of Gibraltar The judiciary of Gibraltar is a branch of the Government of Gibraltar that interprets and applies the law of Gibraltar, to ensure equal justice under law, and to provide a mechanism for dispute resolution. The legal system of Gibraltar is based ...
has a similar institution also called the Court of Protection, part of its Supreme Court.


See also

* Mental Health Review Tribunal (England and Wales)


References


External links

* * {{Authority control Courts of England and Wales 2005 establishments in the United Kingdom Mental health law in the United Kingdom Courts and tribunals established in 2005