The role of the Court of Protection in safeguarding
| DOI | https://doi.org/10.1108/JAP-03-2015-0010 |
| Pages | 380-390 |
| Date | 14 December 2015 |
| Published date | 14 December 2015 |
| Author | Alex Ruck Keene,Kelly Stricklin-Coutinho,Henry Gilfillan |
| Subject Matter | Health & social care,Vulnerable groups,Adult protection |
The role of the Court of Protection
in safeguarding
Alex Ruck Keene, Kelly Stricklin-Coutinho and Henry Gilfillan
Alex Ruck Keene is Barrister at
39 Essex Chambers, London,
UK and Honorary Research
Lecturer at The Institute of
Advanced Legal Studies, The
School of Law, University of
Manchester, Manchester, UK.
Kelly Stricklin-Coutinho is
Barrister at 39 Essex
Chambers, London, UK and
Visiting Lecturer at Kings
College London, London, UK.
Henry Gilfillan is MCA/DOLS
Lead/Independent Social
Worker, AMHP and DOLS
Assessor at the Safeguarding
Adults, London Borough of
Bexley, London, UK.
Abstract
Purpose –The purpose of this paper is to outline how questions relating to capacity arise in the context of
safeguarding, and when applications to the Court of Protection are required in relation to those who may lack
capacity. It also seeks to provide guidance as to how applications to the Court ofProtection should be made
so as to ensure that they are determined effectively and in a proportionate fashion.
Design/methodology/approach –The paper draws on the practical experience of practising barristers
appearing before the Court of Protection, and on the experience of a social worker who is an MCA/DOLS lead
at a London local authority. The paper proceeds by way of a review of the relevant statutory provisions, an
overview of the Court of Protection and then to a practical analysis of when and how applications to the Court
need to be made.
Findings –When to go to the Court of Protection in the safeguarding context is poorly understood, and there
has not been proper recognition of the fact that proceedings for “adult care orders”have a strong forensic
analogy with applications for care orders in relation to children. It is only by recognising these forensic
similarities that local authorities can properly make use of the Court of Protection in the discharge of their
obligations to vulnerable adults in their area.
Practical implications –The paper should lead to a recognition that there is a specialist “adult protection
court”within the Court of Protection, and that applications for adult care orders to that court require specific
and careful preparation and presentation. It will therefore lead to better use of the Court of Protection in the
safeguarding context and –ultimately –a better balance between empowerment and protection of vulnerable
adults who may lack capacity.
Originality/value –The paper is original in combining both legal and social work expertise to reach practical
conclusions as to why such poor use has been made of the Court of Protection in safeguarding context.
Its value lies in the deployment of that expertise to suggest how better use can be made in the future.
Keywords Mental health, Older people, Safeguarding, Learning/intellectual disabilities, Legal, Mental capacity
Paper type General review
Introduction
The new obligations imposed by the Care Act 2014 (“the Care Act”) have given heightened
emphasis to the importance of safeguarding. In the context of those with impaired capacity,
fulfilling those obligations requires those involved to have a clear understanding of the jurisdiction
Having given a brief overview of the issues of mental capacity as they arise in the context of
safeguarding, this paper outlines the scope and jurisdiction of the Court of Protection and gives
guidance as to how an application to the court may be made in circumstances where
safeguarding issues have arisen. The primary focus of this paper is on the obligations upon local
authorities, as they are given the primary safeguarding obligations under the Care Act. However,
its principles are equally relevant to other public bodies who may be required to comply with the
duty to cooperate enshrined in the Act[1].
Received 31 March 2015
Revised 26 August 2015
29 September 2015
Accepted 6 October 2015
The authors thank the anonymous
reviewers for their comments upon
the draft of this paper; errors and
views herein remain the
responsibility of the authors.
PAGE380
j
THE JOURNAL OF ADULT PROTECTION
j
VOL. 17 NO. 6 2015, pp. 380-390, © Emerald Group Publishing Limited, ISSN 1466-8203 DOI 10.1108/JAP-03-2015-0010
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