A delayed application to the Court of Protection: At what cost?

A recent Court of Protection (COP) decision highlights the risk of a costs order being made when a party has delayed in issuing proceedings.

The proceedings concerned an application by a Health Board relating to NN, a 32-year-old woman in the Health Board’s care.

NN was pregnant and the Health Board sought an order declaring it lawful and in NN’s best interests to be offered a termination, and to proceed with the proposed treatment plan.

By the time of the final hearing, NN was 21 weeks and four days’ pregnant, and there were only few days left during which a termination could take place.

The COP ultimately:

•  Declared NN lacked capacity to decide whether to have a termination; and
•   Authorised the aspects of NN’s treatment plan which amounted to a deprivation of liberty.

Costs

The general rule in welfare proceedings in the COP is that each party bears their own legal costs.

However, the COP has wide discretion in relation to costs orders and can depart from the general rule if the circumstances justify doing so.

In this case, the Official Solicitor on behalf of NN sought 100% of their costs from the Health Board, on the basis that the Health Board had delayed unreasonably in issuing the proceedings. Whilst the Health Board accepted there was a delay, it did not agree to pay 100% of the Official Solicitor’s costs.

It was established that NN first stated she wanted a termination on 8 June 2024, when she was around 8 weeks’ pregnant. On 21 June 2024, during a professionals’ meeting, it was acknowledged that an application to the COP was highly likely to be required, but the application was not made until 16 August 2024.

The Health Board explained that further discussions were needed with NN after the meeting on 21 June 2024, and capacity assessments had to be carried out. The Health Board said the delay was due to NN’s non-engagement, and that an earlier application could have put undue pressure on NN.

The COP’s view was that:

• The Health Board’s legal team should have been swiftly involved, and then present at further meetings to advise clinicians about the evidence required for an application to the COP; and
• An application should have been prioritised and made at the very latest by 26 July 2024, which would have saved NN a month of waiting.
  

The COP ultimately decided that the Health Board did delay unreasonably in issuing proceedings and directed that they pay 100% of the Official Solicitor’s costs (other than those incurred for a hearing on 20 August 2024, where an existing order set out a different arrangement in relation to costs).

You can read the judgment here.

Commentary

In this case, the possible deprivation of NN’s liberty that was anticipated when making the application did not materialise. The judge said, ‘It is incumbent on those concerned with obstetric cases to give the most careful scrutiny at the earliest possible stage to whether orders are actually required from the [COP], and if so, the substance of those orders.’

When serious medical treatment is proposed, NHS Trusts and Integrated Care Boards should:

• Consider carefully whether an application to the COP is necessary
• If so, prioritise making the application
• Consider involving legal advisers at an early stage
  

If you require advice on an application to the COP, our team of experts would be happy to help.

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