The Court of Protection Pilot Mediation Practice Direction Scheme
The Court of Protection has seen an exceptional increase in claims being issued. In 2017, 38,945 orders were made by the Court under the Mental Capacity Act 2005 (‘the Act’).
It can take many months for an application to process through the Court before a hearing is listed. It is against this background that the South West Region working group has been tasked to set up a Court of Protection mediation pilot scheme. The purpose of the scheme is to encourage parties to reach an agreement at an early stage during the course of legal proceedings.
This will in turn lead to fewer hearings and lower costs, and may also result in improving the relationships between parties when compared to litigation, thus creating a better way of resolving disputes involving the most vulnerable in society.
Currently, under the Act and the Court of Protection Rules 2017, the Court has a duty to encourage parties to use ADR. In addition, when considering costs, it is able to look at the conduct of parties before proceedings (rule 19.5(2)(a)) which may also include the unreasonableness of a failure to engage in mediation. The Mental Capacity Act 2005 Code of Practice also encourages disagreements to be resolved by formal or informal procedures.
The pilot scheme will add to these provisions and will apply both to Health and Welfare disputes, including serious medical treatment and Property and Affairs disputes. This includes contested Deputyship applications.
It is intended that the pilot scheme will be implemented by way of a practice direction. As such it will regulate only the conduct of issued claims and in this way, proceedings would effectively be stayed in order for an agreement to be attempted. However, mediation can be used at any stage during a dispute and there is nothing to prevent the practice direction being followed prior to a claim being formally issued in the Court.
In addition to the pilot scheme, the Office of the Public Guardian announced in May 2018 that they are looking to launch a a further mediation pilot to deal with welfare disputes prior to issue. It is expected that the two pilot schemes will run alongside each other.
When the pilot schemes are to be introduced is yet to be confirmed, however this is an exciting and welcomed development within the Court of Protection which fully accords with the objective of dealing with cases justly and proportionately.
If you would like to read further about the mediation scheme you can download a copy of the proposals here.
Anthony Gold’s Court of Protection Department have significant experience in Deputyship applications, including contested applications and mediation. If you would like further advice, please do not hesitate to contact us.