The vexed question as to whether P needs to be a party to proceedings for authorisation of deprivation of liberty has now been answered, although not in the fashion that we might have expected.
In a detailed and very lengthy (45 page) judgment  EWCA Civ 599, the Court of Appeal has held that it did not have jurisdiction to hear the appeals brought against the decisions in Re X Nos 1 and 2  EWCOP 25 and  EWCOP 37. In essence this was because the Court of Appeal considered that the President had not in fact made any decisions against which an appeal could lie. All the members of the Court of Appeal identified, in different ways, the difficulties with the route that the President had adopted in terms of undertaking what was “in substance a consultative exercise intended to promote the development of new rules of procedure,” which was not something that the court was entitled to undertake (paragraph 146, per Moore-Bick LJ).
Importantly, however, all three of the members of the Court of Appeal made clear, in different ways, that the President’s conclusions (at least as regards Article 5) could not, in consequence, be considered authoritative (this is expressed most clearly by Gloster LJ at paragraph 127).
Further, and equally – if not more – importantly, all three members of the Court of Appeal made clear that those conclusions were flawed. Whilst, strictly, these conclusions are obiter, they were very strongly expressed, Black LJ making clear that her 50 paragraphs of analysis on this point were firmly what she would have decided had the court had jurisdiction. We therefore anticipate that very considerable weight would be placed upon them by any subsequent court considering (for instance) a challenge to the ‘Re X procedure.’
All three members of the Court of Appeal were clear that, at least as the Court of Protection is currently constituted, both fundamental principles of domestic law and the requirements of the ECHR demand that P be a party to proceedings for authorisation of deprivation of liberty:
The key paragraphs from each of the judgments are set out below.
1. “it is generally considered indispensable in this country for the person whose liberty is at stake automatically to be a party to the proceedings in which the issue is to be decided. The President’s conclusion that it was unnecessary for this to be so in relation to an adult without capacity appears therefore to run counter to normal domestic practice. It might, therefore, be thought to require very firm foundations if it is to be regarded as acceptable” (paragraph 86);
2. “Article 5 is not, of course, drafted in terms which reflect our domestic procedure and practice and nor does the jurisprudence of the ECtHR speak in those terms. It is not surprising therefore that it is not said explicitly that a person whose liberty is the subject of proceedings must be a party to those proceedings. It is necessary to consider the substance of what is said in the Article and the decisions concerning it and to determine how the required guarantees can be delivered in the procedural framework of the domestic legal system” (paragraph 93);
3. “What is essential is that the person concerned ‘should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation’. In so far as special procedural safeguards are required because the person is not fully capable of acting for himself, they are there to secure the right and must not impair the ‘very essence’ of it.” (paragraph 94);
4. “I can accept that, in theory, P need not always be a party to the proceedings if his participation in them can reliably be secured by other means. The question is, however, whether this can be done and, more importantly, whether the streamlined procedure contemplated by the President could be sufficiently relied upon to achieve it. In considering this, it has to be borne in mind that the President was establishing a process which was to be universal. It would be translated into action by many who were expert and efficient but, inevitably, also by some who were lacking in time or expertise or judgment. […] I am not suggesting bad faith on the part of those involved in the process, merely acknowledging the pressures and realities of everyday practice” (paragraph 96);
5. “The problem with the President’s scheme, in my view, is at least twofold. First, it is heavily dependent upon P conveying a wish to be joined in the proceedings or opposition to the arrangements proposed for him, or someone else who has his interests at heart taking these points on his behalf. Secondly, it depends entirely on the reliability and completeness of the information transmitted to the court by those charged with the task. In many cases, this will be the very person/organisation seeking authorisation for P to be deprived of his liberty and the possibility of a conflict of interest is clear” (paragraph 100);
6. Especially given the limitations with the consultation process contained in Annex C to the Re X forms, and the challenges of consulting with a person of impaired capacity, “[i]t is not appropriate, in my view, for P’s participation in proceedings to turn in any way upon whether he wishes to participate or indeed upon whether he expresses an objection to the form of care that is being provided or proposed. There is too high a risk of slip ups in such a scheme. Article 5 requires a greater guarantee against arbitrariness” (paragraph 103).
7. “I do not go so far as to say that no scheme in relation to deprivation of liberty would comply with Article 5 unless it provided for deprivation of liberty proceedings in which P was formally a party. The Schedule A1 procedure (with the initial authorisation conferred by the local authority but with provision for a challenge under section 21A) has been accepted as providing appropriate safeguards in relation to deprivation of liberty and I entirely accept that it could be extended to cover a wider category of case. Furthermore, I accept that it might be possible to take the best of that procedure and to devise a less complex process which will still protect those whose liberty is in the balance. I cannot agree with the President, however, that the streamlined scheme he devised provides the elements required for compliance with Article 5. I stress that I am only concerned, at present, with whether P must be a party to the deprivation of liberty proceedings. Given the tools presently available in our domestic procedural law, I see no alternative to that being so in every case” (paragraph 104, emphasis added);
8. Under the President’s scheme, “which amounts to placing an additional hurdle in the way of P participating in the proceedings – instead of being a party automatically, there is an additional process to be gone through before he is joined, namely the collection/provision of material to persuade the court that he wishes/needs to be joined… P therefore in a position which is the opposite of what the Strasbourg jurisprudence requires, namely that the essence of the Article 5 right must not be impaired and there might, in fact, need to be additional assistance provided to P to ensure that it is effective” (paragraph 107);
9. Even if the consequence were to be greater pressure on resources and delay, such were not material to a determination of whether there are adequate safeguards to satisfy Article 5. “For the reasons I have explained, had I been in a position to determine the issue in these proceedings, I would have held that in order that deprivations of liberty are reliably subjected to thorough scrutiny, and effective procedural safeguards are provided against arbitrary detention in practice, it is presently necessary for P to be a party in the relevant proceedings” (paragraph 108).
10. “I am supported in this conclusion [that the President’s opinions are not authoritative] by the views of Lord Justice Moore-Bick and Lady Justice Black, with which I agree, that in any event the President’s conclusion – that a patient need not be made a party in order to ensure that the proceedings are properly constituted (even though he may be joined as a party at his request) – is not consistent with fundamental principles of domestic law and does not provide the degree of protection required by the Convention and the Strasbourg jurisprudence” (paragraph 127)
11. “In order to obtain a decision which binds a person of full age and sound mind it is necessary to make him a party to the proceedings and in the light of the approach adopted in Cheshire West, it is difficult to see why the same should not be true of a person who lacks capacity, despite the fact that he must act by a litigation friend, when his liberty is at stake” (paragraph 170);
12. “The decision in Winterwerp v The Netherlands (1979) 2 E.H.R.R. 387 makes it clear that a person who lacks capacity must have access to a court and an effective opportunity to be heard, either in person or by means of representation. The fullest right to participation in proceedings is that which is enjoyed by the parties, but the streamlined procedure envisaged by the President contemplates that there will be cases in which a person lacking capacity will not be made a party because someone considers that it is unnecessary for that step to be taken. I agree with Black L.J. for the reasons she gives that a procedure under which such a person need not be made a party in order to ensure that the proceedings are properly to constituted (even though he may be joined as a party at his request) is not consistent with fundamental principles of domestic law and does not provide the degree of protection required by the Convention and the Strasbourg jurisprudence” (paragraph 171).
It is perhaps important to note that the Court of Appeal did not express any view upon the two other questions that were formally before it on the appeal, namely (1) whether in all cases an oral hearing is required; and (2) whether a litigation friend must act via a solicitor (unless they are themselves entitled to do so). However, given the manner in which the Court of Appeal expressed themselves in relation to the President’s judgments, it can properly be said that the President’s conclusions in this regard must also be seen as the expression of opinion rather than authoritative decisions (indeed, strictly, extra-judicial opinion).
The unusual saga that is Re X has reached a suitably unusual conclusion (as it is difficult to see how anyone could seek to take this further).
Quite where this leaves practitioners and the Court is, at present, not entirely clear. However, it would appear very likely that the Re X procedure will have to be subject to an immediate overhaul so as to provide that P is joined in each case. It may, however, be that this is short-lived because it might, potentially, be that other directions can be made under Rule 3A(2) (for instance the appointment of a representative or an accredited legal representative upon the creation of a panel of such representatives) who can secure P’s participation in such a way as to secure protection of their rights. It should perhaps be noted that the draft of Rule 3A was, in fact, before the Court of Appeal, although no reference was made to it by any of the members of the court.
We suggest that this decision is likely:
1. To give an immediate impetus to development of the scheme for Accredited Legal Representatives so as to widen the pool of representation available where P is joined as a party;
2. To add to the pressure to ensure that a suitable regime is put in place sooner rather than later that provides for the administrative authorisation of deprivation of liberty in settings outside hospitals and care homes. The time-frame of 2017 for the Law Commission’s report is looking increasingly problematic in this regard, we would suggest.
We should perhaps emphasise three final points:
1. no party to what (in fact was not) the appeal against (what in fact were not) the decisions of the President challenged his conclusions as to the evidential requirements that must be satisfied before a judge can authorise a deprivation of liberty. Nor did the Court of Appeal cast any doubt upon his conclusions that, for instance, there must be objective medical evidence that the individual is ‘of unsound mind.’ Given how robust they were in their conclusions as to the We would therefore suggest that it is clear that whatever procedure is enacted by the court (and in due course whatever replacement is proposed by the Law Commission) can properly proceed on the basis that the President properly identified the ‘irreducible matters’ that must be addressed in evidence to comply with Article 5(1)(e) ECHR.
2. Linked to this, we would strongly advise that local authorities and CCGs who are responsible for care arrangements that give rise to deprivations of liberty outside hospitals and care homes do not delay in making applications until the Court of Protection has put in place a replacement for the Re X procedure. This decision does not alter the obligation on such bodies to seek authorisation from the Court where such is necessary, nor does it alter the nature of the evidence that must be put before the Court – what it alters is what the Court must then do in order to ensure compliance with Article 5(1)(e) ECHR.
3. Lastly practitioners must be alert to any ongoing welfare cases where P may not have been joined, or where P has been joined but no litigation friend has been appointed – perhaps for funding reasons – which involve P’s residence, where P’s living arrangements may satisfy the “acid test” in Cheshire West. In such cases there must be a question as to whether P has the ability to participate effectively (for a very recent example, see Bournemouth Borough Council v PS  EWCOP 39).