«company» - Court of Protection Handbook



letter of instruction to expert

[Mr/Ms ]

Social Care Consultant

Anytown

AN1 5IL

Our ref: /005808.001

Your ref:

Date: 21 April 2017

PROTECT: PERSONAL DATA

Dear Ms Stuart

Re:     Any County Council and (1) John Smith (by his litigation friend the Official Solicitor), (2) Jane Smith / Court of Protection number 000

Thank you for agreeing to prepare a report in this case. You are instructed by the parties below as an expert on an application by the Any County Council for declarations and decisions in respect of the capacity and best interests of Mr Smith. The Official Solicitor was appointed Mr Smith's litigation friend on 1 March 2017.

By virtue of an order on 2 April 2017 the Court has given permission to the parties to instruct you to produce an independent report in these proceedings. You have permission to see all records and documents filed in these proceedings and to examine Mr Smith and read his social work medical and other records.

Your report must be filed and served by 30 May 2017. If you have any difficulties with that timescale please let me know straight away.

The final hearing has not yet been fixed. There will be a directions hearing at the Court of Protection on the first open date after 6 June 2017. I will keep you informed of any further hearings.

I am the lead solicitor in this case to whom you should look for instructions and information.

1. The parties

a) The applicant is Any County Council. The Council is represented by Mr James Burton, of Any County Council. Town Hall, Anytown. His direct dial is [………] and his email address is [………].

b) The 1st respondent is Mr Smith. He currently resides at the address above, which is the matrimonial home he shares with Mrs Smith. He is represented by me instructed by the Official Solicitor as litigation friend. My details appear at the top of this letter.

c) The 2nd respondent is Mrs Jane Smith. She resides with Mr Smith at the address above. She is represented by Mr Ian Brightspark, of Brightspark Solicitors LLP, High Street, Anytown. His direct dial is [………] and his email address is [………].

Mr Smith has an acquired brain injury, subsequent to a road traffic accident on 3 December 2015.

         

2. Documents

Please see my letter of today's date which lists the documents which you have been sent. I also attach copies of Mr Smith's records from Any County Council's Adult Social Care Team. Copies of his GP records and records from Anytown Hospital will follow.

3. Family structure

Mr John Albert Smith (‘P’) [DOB ………..]

Parents: James and Elizabeth Smith, 25 The Lane, Anytown

Siblings: None

Wife: Jane Smith [DOB ………..]

Parents-in-law: Janet and Bradley Marriott, 34 Fir Avenue, Anytown

4. Background history

You should note that the court has not made any findings of fact in this case. Mr Smith was born on [………] and is thus 33 years of age. He achieved well at school and attended Any University where he achieved a degree in mathematics. Whilst at University he met Jane Marriott and they married in 2004. Mr and Mrs Smith have lived at their current address since April 2005. Mr Smith is known to have worked as a computer programmer and Mrs Smith is a teacher. Mrs Smith describes them as a couple who did not socialise much but enjoyed spending time together or with their respective families. Mr and Mrs Smith have no children but are believed to have been trying for a baby. Mr Smith was the victim of a road traffic accident on 3 December 2015, following which he sustained a brain injury which has resulted in a significant impairment. He is said to have made a good recovery from his physical injuries. He currently lives with Mrs Smith who is his main carer, with a care package provided by Any County Council; however following concerns about the quality of the care provided by Mrs Smith (set out in the statement of Ms Cavanagh at C1 in the trial bundle) the Council applied for permission to make an application to the Court of Protection.

5. Summary of the proceedings to date

 These proceedings were commenced by the local authority who made an application (form COP1) on 10 March 2017 The application appears at page II 1 of the trial bundle. The local authority asked the court to decide the following questions:

• Does Mr Smith have capacity to make decisions about where he should live?

• Does Mr Smith have capacity to make decisions about whom he has contact with?

• Is it in Mr Smith's best interests to reside at the home he shares with Mrs Smith or at a specialist rehabilitation unit?

• What should the contact arrangements with Mrs Smith be if MR Smith moves to the rehabilitation unit?

The local authority set out the orders it sought:

• A declaration that Mr Smith lacks capacity to litigate these proceedings, and to make decisions about residence, care and contact with others.

• A declaration that it is in Mr Smith's best interests to move to a specialist rehabilitation unit for care and treatment.

• A declaration that it is in Mr Smith's best interests to have contact with Mrs Smith by agreement between Mrs Smith and the Unit.

District Judge Bloggs granted permission on 1 March 2017. At the same time, he joined Mr Smith as a party and appointed the Official Solicitor to act as his litigation friend, the Official Solicitor having consented to act. Mrs Smith had indicated that she intended to instruct solicitors and you will see that she is now represented.

The first attended hearing took place on 2 April 2017. A copy of the order is with your papers at B30 of the trial bundle. You will see that DJ Jones made interim declarations that Mr Smith lacked capacity to litigate these proceedings and that he lacked capacity to make decisions about residence, care and contact with others. A number of case management orders were made, including provision for your instructions at paragraphs 12 and 13.

6. Mr Smith's capacity

Dr Williams' opinion is that Mr Smith lacks capacity to make decisions about his residence, care and contact, and to litigate these proceedings and that there is no prospect of his recovering such capacity.

At the hearing on 2nd April it became clear that all parties now agree that Mr Smith lacks capacity to make the decisions under consideration and it is likely that final declarations to this effect will be made at the next hearing. You are not therefore instructed to report upon Mr Smith’s capacity to make these decisions, although should you have any reason to doubt that he lacks such capacity, it is important that you highlight these immediately to me so that they can (if required) be brought to the attention of the court.

7. Reference to [z’s] views

Mr Smith has said consistently that he would prefer to live with Mrs Smith. You are referred to the witness statement of Ms Cavanagh at E13, where she describes her interview with Mr Smith and to my attendance note of my visit to Mr Smith, when he became quiet emotional at the prospect of leaving home.

 

8. Assessment of best interests

The court is being asked to make a decision in Mr Smith's best interests. You are asked to advise the court and (the parties) on what is in Mr Smith's best interests given the circumstances outlined in this letter, in the documents accompanying this letter and from your own observations.

The term ‘best interests’ is not defined by the Act. MCA 2005 s4 however provides a statutory checklist of matters which should be taken into account and is set out below.

Best interests

4.

1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of–

a) the person's age or appearance, or

b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.

3) He must consider—

a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and

b) if it appears likely that he will, when that is likely to be.

(4)     He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

(5)     Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

6) He must consider, so far as is reasonably ascertainable–

a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

b) the beliefs and values that would be likely to influence his decision if he had capacity, and

c) the other factors that he would be likely to consider if he were able to do so.

7) He must take into account, if it is practicable and appropriate to consult them, the views of–

a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,

b) anyone engaged in caring for the person or interested in his welfare,

c) any donee of a lasting power of attorney granted by the person, and

d) any deputy appointed for the person by the court,

as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).

(8) The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which—

(a) are exercisable under a lasting power of attorney, or

(b) are exercisable by a person under this Act where he reasonably believes that another person lacks capacity.

(9) In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned.

(10)  ‘Life-sustaining treatment’ means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.

(11)     ‘Relevant circumstances’ are those–

a) of which the person making the determination is aware, and

b) which it would be reasonable to regard as relevant.

Again you are required to have regard to the Principles and provisions of the Act and the Code of Practice when considering and providing your opinion on Mr Smith's best interests (see in particular chapter 5 of the Code).

The Supreme Court has made clear that the purpose of the best interests test is to make the decision for P which is right for them as an individual human being (Aintree v James [2013] UKSC 67). The test that the court will apply is not “what P would have done test,” but it is necessary that the person is at very heart of the decision-making process. This has consequences for the approach taken to P’s wishes and feelings. In Briggs v Briggs (No 2) [2016] EWCOP 53, Charles J endorsed the approach originally set down by HHJ Marshall QC in S and S (Protected Persons) [2010] 1 WLR 1082, namely that:

In my judgment it is the inescapable conclusion from the stress laid on these matters in the 2005 Act that the views and wishes of P in regard to decisions made on his behalf are to carry great weight. What, after all, is the point of taking great trouble to ascertain or deduce P’s views, and to encourage P to be involved in the decision-making process, unless the objective is to try to achieve the outcome which P wants or prefers, even if he does not have the capacity to achieve it for himself.

The 2005 Act does not, of course, say that P’s wishes are to be paramount, nor does it lay down any express presumption in favour of implementing them if they can be ascertained. Indeed the paramount objective is that of P’s “best interests”. However, by giving such prominence to the above matters, the Act does, in my judgment, recognise that having his views and wishes taken into account and respected is a very significant aspect of P’s best interests. Due regard should therefore be paid to this recognition when doing the weighing exercise of determining what is in P’s best interest in all the relevant circumstances, including those wishes.

9. Your instructions

     I hope the enclosures supply you with all the relevant documents. Please let me know if you need any further information or require clarification on any matters.

Please arrange to see Mr Smith. I am happy to arrange an appointment for you with Mrs Smith if this would assist. You will need to consider his social work and health records. You will need to speak to those responsible for his care. His care manager is Ms Cavanagh who can be contacted via the Council's solicitors.

You will need to meet Mrs Smith and Mr Smith's parents and father-in-law (his mother-in-law herself has dementia and it will not be appropriate for you to interview her). Having regard to section 4(7) in particular you should consider whether there is any other person engaged in caring for Mr Smith or interested in her welfare whom it would be practicable and appropriate for you to consult -for example other family members or social care professionals. If you need assistance in making arrangements to consult any other person please let me know. You should identify in your report all persons whom you have consulted during the course of your assessment. It is important to note that the purpose of consultation is, in particular, to enable you to identify the matters set out under section 4(6). In other words, it is of less importance to identify what the person you are consulting with thinks is in Mr Smith’s best interests than what information they can give you as to what Mr Smith’s wishes, feelings, beliefs and values are in relation to the matters in hand.

Please provide a report covering the following areas:

Best interests

            Please advise as to Mr Smith's best interests.

1. Care

a) Please set out Mr Smith's care needs. This should include the support needed in the following areas. If you are not able to comment on any of the areas below please say so:

                    Mental Health

                        Maximising independence

                        Daytime activities

                        Learning disability

                        Physical health

                        Cultural

b) In what kind of setting can the needs you have identified under all the above headings best be met?

           

2. Residence

a) What would the benefits be to Mr Smith's physical, mental, psychological, emotional and cultural wellbeing if he remains living with Mrs Smith?

b) What are the disadvantages to Mr Smith's physical, mental, psychological, emotional and cultural wellbeing if he continues to reside with Mrs Smith.

c) What would the benefits be to Mr Smith's physical, mental, psychological, emotional and cultural wellbeing if he moves to a specialist rehabilitation unit?

d) What are the disadvantages to Mr Smith's physical, mental, psychological, emotional and cultural wellbeing if he moves to a specialist rehabilitation unit?

e) Is it in Mr Smith's best interests to reside with Mrs Smith? If so please advise as to the package of care required to support this.

3. Contact

a) If it is not in Mr Smith's best interests to live with Mrs Smith, is it in his best interests to have contact with Mrs Smith?

b) What should the level and frequency of that contact be?

c) Should there be any restrictions on such contact with Mrs Smith and if so what should these restrictions be?

You may find it of assistance to draw a balance sheet to outline benefits and burdens as an “aide memoire of the key factors and how they match up against each other and as a route to judgment rather than a substitution for the judgment itself” (Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882).”

10. Role of an expert

Additional to the documents referred to at (2) above I enclose for your ease of reference Part 15 (Experts) of the Court of Protection Rules 2007 and the supplemental practice direction together with a copy of guidance issued by Mrs Justice Pauffley in December 2010. I draw your attention in particular to rule 15.4 (paragraph 2 of the practice direction) with regard to the expert’s duty to the court and to rule 15.8 (paragraphs 8-11 of the practice direction) with regard to the content of an expert’s report, and to paragraphs 8 and 9 of the December 2010 guidance.

11. Contact with others

It is essential to both your role as an independent expert and to the parties' perception of your independent status that there are no informal unrecorded discussions or correspondence with anyone involved in the case, particularly when you come to interview others such as the social care staff, etc. If you need further information, please contact me as I am the lead solicitor and I will provide information after consultation with the other solicitors involved. If documents are exchanged with one party, please copy them to all the others. Where possible, communication is best achieved by fax, letter or e-mail copied to all the parties.

Please maintain a careful record of all discussions with all persons with whom you discuss this case in the event that it is necessary to refer to them later.

It will be helpful if you would confirm in writing to me who you would like to have contact with, so that all parties are aware that meetings will be taking place in due course.

12. Proposed timescale and plan of work

If you require any help from me in arranging meetings or contacting the other solicitors, please let me know. Otherwise I shall assume that you will go ahead, organise visits and meetings, and will make your own arrangements. If at any time there is a delay in your plan and the timescale has to be altered, please inform me promptly so that I may inform the other parties and the court if appropriate

13. Factual issues and your report

You should express your opinion regarding your findings on the facts of the case, but you must not seek to resolve disputed facts, as this is of course the job of the court at the hearing. Where appropriate, it will be of assistance if you are able to express your opinion on the basis of alternative findings regarding the factual disputes. Your report may be subject to challenge by any of the parties. It is likely that one or more of the parties may put written questions to you following receipt of your report.

I am under a duty to disclose your report to the court and to the other parties and I will circulate your report on receipt. If you believe, as a rare exception to the general rule, that it should not be disclosed to any party, please let me know and I will seek the court's directions.

           

14. Trial date

The trial date has not yet been fixed. I will ask you closer to the next hearing to let me have details of your availability so that if a trial is fixed it will be on a date convenient to you.

15. Fees

The following terms and conditions apply:

The fees for your instruction will be shared, in equal shares between the instructing parties. Some of the parties are in receipt of public funding and your fees will therefore be met through their public funding certificates.

Ultimately your fees will therefore be assessed by either the court or the Legal Aid Agency (LAA) at the conclusion of the case as to reasonableness in terms of both hourly rate and time spent. The parties’ legal representatives cannot be responsible for any fees over and above those finally assessed and paid by the LAA.

On receipt of your invoice the legal representatives for the publicly funded parties are entitled to, and should promptly make a claim for payment on account of your fees to the LAA. Promptly upon receipt of such payment on account they should make this payment on account to you.  

Such payments on account may, however, be recouped by the LAA at the end of the case following the final assessment of the bill. Such recoupment will only apply to any sum, paid on account, which exceeds the amount finally allowed on assessment by the Court or LAA. If your fees are reduced on assessment, we will notify you within 7 days of receiving notification from the Legal Aid Agency or the court. If you wish us to make representations with regard to the reduction then you should notify us within 7 days, and provide us with the text or those representations, or the supporting documentation as the case may be.

In accepting this instruction, you therefore agree that if your fees are subsequently reduced by the court or the LAA you will promptly reimburse the difference between the amount paid on account to you, and the amount finally allowed on assessment, to the parties’ legal representatives.

Please bear in mind that although we, as the lead solicitors in instructing you,  will do our best to assist you in obtaining prompt payment, we can only be responsible for the share of your fees attributable to our client. The other solicitors involved in this instruction to you are responsible likewise only for the share attributable to their client.

It is also important that during the course of your assessment you inform us immediately if you are likely to exceed your costs estimate. All public funding certificates have a cost limitation and we need to make an application to the LAA for any extension of this if it appears that the aggregate of the fees which are to be incurred in this case is likely to exceed the current costs limitation. If you exceed your fee estimate without prior notification to us your fees may therefore not be met in full.

In addition, there are terms in the 2010 Unified Contract under which the publicly funded legal representatives must operate. In accordance with these if your fees are to exceed £250 you must keep accurate records of all the time spent on the work for which you have been instructed and of the work done. You must also permit the LAA to audit your records if necessary.  

There is also certain work for which the LAA will not pay and limits on certain hourly rates.

The LAA will not pay:

a) Any separate administration fee including, but not limited to, a fee in respect of offices and consultation rooms, administrative support including typing services, subsistence and couriers.

b) Any cancellation fee where notice of cancellation is given more than 72 hours before the relevant hearing or appointment.

c) Any travelling costs in relation to vehicle mileage in excess of 45p per mile.

d) Any fee for travelling time in excess of £40 per hour.

e) Any costs or expenses of or relating to the residential assessment of a child.

f) Any costs or expenses of or relating to treatment, therapy, training or other interventions of an educative or rehabilitative nature.

g) Any costs and expenses of independent social work provided outside England and Wales.

h) Any costs and expenses in relation to contact activities including fees, charges and costs of contact centres  and any reports or other assessments of contact between children and adults. However, please note that this exclusion does not apply to observation of contact which forms part of a psychological or parenting assessment.

You should therefore ensure that none of these costs are included in your invoice.

This letter of instruction has been agreed between the parties instructing you. I should be grateful if you would acknowledge receipt.

If there is anything at all which is not clear please do not hesitate to contact me.

Yours sincerely

Felicia Anysolicitor

ANYSOLICITORS LLP

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