Abstract
This article explores the history of the Court of Protection of England & Wales (CoP) over the twentieth century. The CoP, which is responsible for making financial and welfare decisions on behalf of those deemed incapable of doing so themselves, presently faces a rapidly growing caseload, and considerable scrutiny and critique. Such close attention to its work may be new, but many of the issues it faces have deep roots. Using practitioners' texts, judgements, and the archives of the CoP and the Lord Chancellor's Office, I review the evolution of the CoP in terms of its structure and caseload, its decisions regarding incapacity, its efforts to manage the affairs of those found incapable, and its long-term survival. This reveals the origins of many of the issues it faces today, the different anxieties and approaches that have animated its work in the past, the ways in which approaches to incapacity have changed, and the value of a historical perspective.
Highlights
The role of the Court of Protection of England and Wales (CoP), according to its website, is to ‘make decisions on financial or welfare matters for people who can't make decisions at the time they need to be made.’ This weighty responsibility and wide-ranging power in relation to some of society's most vulnerable has attracted considerable attention over the last decade
The idea of a relationship between prevailing economic conditions and applications to the CoP is strengthened by the fact that the number of receiverships rose once again in the 1970s, just as unemployment rates and severe inflation began to take their toll. This increase over the 1970s was preceded by a period of decline, beginning around the end of the 1940s. This was intimately connected to the arrival of a more comprehensive welfare state and the National Health Service (NHS), evidence from 1949 suggests that such an impact was by no means anticipated: a 1949 report noted the persistent increase in CoP caseload to date with anxiety, and made no mention of the possible effects of new social care legislation (TNA LCO 4/55)
In his judgment in re Walker in 1905, Vaughan Williams LJ acknowledged that the ‘mere mental capacity’ of a ‘lunatic’ might suffice for them to deal with some aspects of their property, but ‘it is necessary for the protection of lunatics generally that they should be debarred from the exercise of such powers’ (Re Walker [1905] 174)
Summary
The role of the Court of Protection of England and Wales (CoP), according to its website, is to ‘make decisions on financial or welfare matters for people who can't make decisions at the time they need to be made (they “lack mental capacity”).’ This weighty responsibility and wide-ranging power in relation to some of society's most vulnerable has attracted considerable attention over the last decade. The MCA, as former Senior Judge and Master of the CoP Denzil Lush has remarked, was wrongly viewed by some as a ‘blank canvas’ onto which a brand new approach to mental capacity could be painted (Lush, 2018) This perspective, in which the history of the CoP is overlooked, reflects the fact that the CoP was not at any time during the twentieth century well-known or highprofile. By focusing on the history of the CoP, where determinations of mental capacity were consistently being made, we can begin to develop a richer understanding of the concept, how it was handled, and what has changed or stayed the same over time This history is accessible through practitioners' textbooks, the few available reported and unreported judgements, administrative records, and especially through the archive of case files and administrative records available at the National Archives in London.. Though, it is useful to look slightly further back in time to provide a short explanation of how the ‘old’ Court of Protection came to be
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