In response to a question about the typical work of a Court of Protection judge, the Senior Judge at the Court of Protection (Judge Denzil Lush) has very kindly shared with me some information he has collated about his workload since 2008. He has also permitted me to reproduce a statistical analysis I conducted on it here for others who may be interested in the work of the court to look at.
The statistics relate to applications for permission to the Court of Protection. Except in certain specified circumstances, the Court of Protection requires applicants to seek the Court’s permission before hearing a case. In general, cases requiring applications for permission are not ordinary property and affairs matters, but relate to deputyships and care and welfare issues. Certain groups do not require permission to apply, but in general people who are not deputies or LPA’s will need to seek permission (see the Court of Protection rules for more information on when permission is needed).
Since 2008 Judge Lush has recorded certain details about these applications in a spreadsheet. What follows is taken from the information he has personally recorded, and the outcomes of the applications for permission. Note that the granting of permission does not mean that the court has acceded to applicant’s request, only that the judge has granted them a hearing before the court. The Court of Protection used to operate an alphabetical split on the applications each judge dealt with, so in statistical terms they were likely to represent a fairly randomly selected sample of the types of applications the court receives. However, since taking on more judges last year, the strict alphabetical split has been abandoned. The number of applications for permission heard by the Senior Judge has declined overall (see Figure 1), despite the growing workload of the court overall, because he has picked up other areas of work. And so the fall in applications considered here does not reflect a falling workload of the court – far from it. It should also be noted that the data for 2008 represents only applications made from the month of April, and the data for 2011 stops during September.
As Figure 2 shows, in more recent years more applications have been granted; this may reflect that applications that are being now are more appropriate – and therefore more likely to be granted.
Senior Judge Lush confirms that the majority of these applications are for deputyships, often for property and affairs combined with welfare. The following passages from the most recent Court of Protection report may therefore help make sense of why a relatively high proportion of applications are refused:
'In the 2009 report, we noted that the court was refusing permission in up to 80% of personal welfare applications. In 2010, this figure reduced to around 70%. Permission is most likely to be refused in so called hybrid applications for the appointment of a deputy; that is where the applicant is seeking both personal welfare and property and affairs powers. There are several reasons why the court does not consider it necessary to appoint a deputy to make personal welfare decisions. The main reason is that section 5 of the MCA confers a general authority for someone to make decisions in connection with another’s care or treatment, without formal authorisation, provided: that P lacks capacity in relation to the decision; and it would be in P’s best interests for the act to be done. Another reason is that, when considering the appointment of a deputy, the court is required to apply the principles in section 16(4) that: “(a) a decision of the court is to be preferred to the appointment of a deputy to make a decision; and (b) that the powers of the deputy should be as limited in scope and duration as is practicable in the circumstances.” In reality, a deputy is rarely needed to make a decision relating to health care or personal welfare, because section 5 already gives carers and professionals sufficient scope to act.
The final reason is that personal welfare decisions invariably involve a consensus between individuals connected with P - healthcare professionals, carers, social workers and family - about what decision is in P’s best interests. If the court appoints a personal welfare deputy, particularly if it’s done without a hearing and considering oral arguments from each side, it could upset the balance of that consensus, and could be seen to favour the deputy’s views over others’. '
Senior Judge Lush also cautions that different judges may handle applications for permission differently, and that therefore we should be cautious of extrapolating from the patterns shown here to the wider performance of the court. I have tried to avoid speculation as to why the data shows certain patterns. A fuller analysis would require a careful audit of the paper applications, which I do not have time to do (but which the court itself is not averse to). Perhaps this is a research program for the future. If anyone would like to suggest any reasons for the patterns in the data in the comments, I would be most interests in hearing them. The Court of Protection – and in particular Judge Lush - has been remarkably open and helpful in allowing me to analyse this data and offering their comments on these statistics; a far from the ‘secretive’ court painted in the media.
For the sake of brevity and clarity, the following analysis reflects the data collapsed by year. A summary of the findings is given at the bottom, for those with limited time.
Characteristics of applicants
In the main, the largest number of applications came from family members (631 in total). Of these, the largest subgroup were applications from sons or daughters (including stepchildren, and sons and daughters in law) of P (n=323). A substantial number of applications also came from parents (n=86). There were a few applications from public authorities, mostly composed of local authorities but also some from NHS Trusts. Some legal practitioners had also made applications in their own name.
I explored this data to see whether there were differences in the success rates of different groups of applicants in seeking permission. As Figure 4 shows, although applications from P’s sons and daughters are the most frequently received, these applications are rather unlikely to be granted permission (8%). The most successful applications come from P’s parents (87%), or from public authorities (79%). Applications by siblings, other family members or from friends and neighbours are less successful than those of parents, but still considerably more successful than those of sons or daughters. Applications of legal practitioners in their own name are fairly successful, at 41%.
I was interested to see whether it made a significant difference to lay applicants (ie. not public authorities or legal practitioners) to have the assistance of a solicitor in drafting their application. Interestingly marginally more applications were granted to those applying for permission without the assistance of a solicitor (76 granted, 75 not), and in fact more applications made with the assistance of a solicitor failed than did not (245 refused, 217 were not).
Interpreting this finding is problematic without more information. It might be tempting to conclude that solicitors’ skills are not needed for an application to the Court of Protection, or that solicitors are generating more work through encouraging unnecessary applications. However, another possibility may that the court is more inclined to hear applications made without the input of a solicitor, in case they conceal issues of pressing importance that are not clearly described in the applications. In research terms, those applicants with and without legal representation are self-selecting groups, and there may be other important differences between the cases they relate to than access to formal legal advice.
Characteristics of P
The age of parties whom the applications concern – ‘P’ – ranges from 3 to 102 years old. There were two cases where applications were made in respect of people under the age of the court’s jurisdiction (16, see MCA s2(5)) – and disappointingly enough, one of these was made with the assistance of a solicitor. Despite the potentially wide range of the court’s jurisdiction, the median age of P was 80 years old and the mean was 70. The distribution is negatively skewed, that is to say - the majority of subjects of applications were clustered towards the older end of the range. Table 1 (below) gives descriptive statistics about the ages of the parties whom the applications concerned.
Figure 6 breaks down applications by the gender of P. The chart shows that the great majority of applications concerned women. Furthermore, a far greater proportion of applications relating to women were refused compared to those relating to men.
I speculated that this may be because of women’s longevity over men, and because applications relating to older people were in general less likely to be granted. These two histograms in Figure 7 break down the age distribution by gender and by whether or not an application was granted or refused.
For women, it would seem, the overall number of applications granted is fairly evenly distributed over the lifecourse, and many applications relating to older women are refused. Many applications relating to older men are also refused, but there is a particular spike in applications granted that relate to younger men. So a large number of applications concerning older men and women are rejected, but the court tends to receive and hear a large number of applications about younger men.
Figure 8 shows the number of applications the judge received as a function of P’s diagnosis (as recorded by Judge Lush, but collapsed into fewer categories by me). The vast majority (61%) of applications relate to people with dementia, including 28% of all applications that specified Alzheimer’s disease and 23% that specified vascular dementia. Developmental disabilities also make up a large proportion, including “learning disability” (8% of all applications); autism (5% of all applications); cerebral palsy (2% of all applications); or other developmental conditions – including chromosomal disorders (1% of all applications). Applications relating to adults with acquired brain damage of cardiovascular origin (e.g. stroke, haemorrhage etc) were also a substantial group, and applications relating to adults with progressive neurololgical conditions like MS or Parkinson’s were a substantial minority. Surprisingly few applications relate to people with mental illnesses like bipolar disorder or schizoaffective disorders. And the number of applications concerning people with significant disorders of consciousness like coma or PVS were very few indeed.
Figure 9 takes those applications for which there was a known outcome (permission granted or refused), and charts the success rate of the application against P’s diagnosis. The most successful applications relate to parties with developmental disorders. The second most successful applications tend to relate to parties with severe disorders of consciousness, including PVS or coma. The least successful applications relate to dementia, which stand only a 13% chance of being granted.
It is possible that the differences in the success of applications relating to men and women (see Figures 6 and 7 above) may be explained by reference to gender differences in their diagnoses. The histogram in Figure 10 shows that whereas women make up a disproportionate number of applications relating to people with dementia (which are less likely to be granted). In contrast, the numbers of men and women with developmental disabilities or acquired brain damage (which are more likely to be granted) are more evenly distributed. In the wider population, men are more likely to be at risk of certain developmental disorders like autism than women are.
These data help to build up a picture of the kinds of applications being made to the Court of Protection. They suggest that the vast majority of the applications received by the court are from the children of older parents, usually with dementia. However, these kinds of applications are more likely to be refused permission than granted, perhaps for the reasons given in the Court of Protection report quoted above. A large minority of applications come from parents or other relatives of younger people with developmental disabilities, and these applications are much more likely to be granted. Another significant group of applications relate to younger adults with an acquired disability; the probability of such an application being granted being around one-third.
It would be interesting to explore why the court receives such a large number of applications from the sons and daughters of older adults, and why these are less likely to be granted than applications from parents of younger people with developmental disabilities. Without a proper audit of the paperwork, it would be dangerous to speculate on why this may be the case, and so this may be a project for the future. Furthermore, as noted by the judge, these patterns may not be reflected by the work of the court as a whole as judicial practices may vary. Your thoughts on this, however, are very welcome in the comments below.