Objections, DOLS and the Court of Protection

The long-awaited judgment from Baker J following up on AJ has just been published.  A full report will appear in the next 39 Essex Chambers Mental Capacity Law Newsletter, but in brief Baker J had to address the question of: “When, if at all, does the requirement under Article 5(4) to assist P to exercise his or her right of appeal to the Court of Protection under s.21A of the MCA arise in cases other than those in which P expresses a clear and consistent objection to the arrangements for his/her care and treatment?”

Having answered the question in characteristically erudite fashion, Baker J then very helpfully gave (at para 86) general guidance for the future, reproduced below.

(1) The RPR must consider whether P wishes, or would wish, to apply to the Court of Protection. This involves the following steps:

(a)   Consider whether P has capacity to ask to issue proceedings.  This simply requires P to understand that the court has the power to decide that he/she should not be subject to his/her current care arrangements.  It is a lower threshold than the capacity to conduct proceedings.

(b)   If P does not have such capacity, consider whether P is objecting to the arrangements for his/her care, either verbally or by behaviour, or both, in a way that indicates that he would wish to apply to the Court of Protection if he had the capacity to ask.

(2)    In considering P’s stated preferences, regard should be had to:

(a)   any statements made by P about his/her wishes and feelings in relation to issuing proceedings,

(b)   any statements made by P about his/her residence in care,

(c)   P’s expressions of his/her emotional state,

(d)   the frequency with which he/she objects to the placement or asks to leave,

(e)   the consistency of his/her express wishes or emotional state; and

(f)    the potential alternative reasons for his/her express wishes for emotional state.

(3)     In considering whether P’s behaviour constitutes an objection, regard should be had to:

(a)   the possible reasons for P’s behaviour,

(b)   whether P is being medicated for depression or being sedated,

(c)   whether P actively tries to leave the care home,

(d)   whether P takes preparatory steps to leave, e.g. packing bags,

(e)   P’s demeanour and relationship with staff,

(f)    any records of challenging behaviour and the triggers for such behaviour.

(g)   whether P’s behaviour is a response to particular aspects of the care arrangements or to the entirety of those arrangements.

(4)   In carrying out this assessment, it should be recognised that there could be reason to think that P would wish to make an application even if P says that he/she does not wish to do so or, conversely, reason to think that P would not wish to make an application even though he/she says that she does wish to, since his/her understanding of the purpose of an application may be very poor.

(5)   When P does not express a wish to start proceedings, the RPR, in carrying out his duty to represent and support P in matters relating to or connected with the Schedule, may apply to the Court of Protection to determine any of the four questions identified in s.21A(2) i.e. on the grounds that P does not meet one or more of the qualifying requirements for an authorisation under Schedule A1; or that the period of the standard authorisation or the conditions subject to which the standard authorisation is given are contrary to P’s best interests; or that the purpose of the standard authorisation could be as effectively achieved in a way that is less restrictive of P’s rights and freedom of action.

(6)   Consideration of P’s circumstances must be holistic and usually based on more than one meeting with P, together with discussions with care staff familiar with P and his/her family and friends.   It is likely to be appropriate to visit P on more than one occasion in order to form a view about whether proceedings should be started.

(7)   By way of an alternative to proceedings, it may be appropriate to instigate a Part 8 review, or to seek to work collaboratively with the family and the commissioning authority to see whether alternate arrangements can be put in place. Such measures should not, however, prevent an application to the court being made where it appears that P would wish to exercise a right of appeal.

(8)   The role of the IMCA appointed under s.39D is to take such steps as are practicable to help P and the RPR understand matters relating to the authorisation set out in s.39D(7)(a) to (e), and the rights to apply the Court of Protection and for a Part 8 review, and how to exercise those rights.  Where it appears to the IMCA that P or the RPR wishes to exercise the right, the IMCA must take all practical steps to assist them to do so.  In considering P’s apparent wishes, the IMCA should follow the guidance set out above so far as relevant.

 

 

Revised COPDOL 10 form to come into effect on 1 December 2016

The revised COPDOL 10 form, incorporating (in particular) the additional questions posed by Charles J in Re NRA, is to come into effect on 1 December.  A copy of the form is available here, but the ’embargo’ marking is a reminder that it cannot be used before 1 December (the current form, in PDF and unofficial Word form) is available here.

Law Commission’s interim statement published

You can read the Law Commission’s interim statement on its review of the deprivation of liberty safeguards here.  The statement summarises the responses received to its consultation paper and gives the Commission’s preliminary views as to the way forward.

A total of 583 responses were received after an extension publication to which many readers will have contributed.

In brief the Commission currently concludes:

  • There is a compelling case for replacing the DOLS through legislation.  The system is currently unsustainable and DOLS has failed to deliver improved outcomes for those lacking capacity and their families.
  • Any new scheme must reduce the administrative burden and costs of DOLS.
  • A more streamlined and flexible scheme will be introduced with the responsibility for establishing a deprivation of liberty shifted to the commissioner not the provider.  The commissioner will in many cases be able to rely on existing assessments of capacity and best interests.
  • All those deprived of their liberty would be eligible for safeguards including advocacy and /or assistance and the right to challenge the deprivation of liberty (the original proposal was for automatic referrals to the court).  The Commission has not yet decided whether the review should be by the First Tier Tribunal or the Court of Protection.
  • Amendments to the MCA will seek to maintain article 8 protections to ensure there is sufficient consideration of the necessity of removing the individual from their home and giving greater priority to their wishes and feelings.
  • Some groups may have an additional layer of oversight by an Approved Mental Capacity Professional, limited to a one-off decision whether to agree or not the other deprivation of liberty.  These groups are not defined as yet.
  • There will be no changes to the Mental Health Act.
  • The new scheme should  be removed from the Coroners and Justice Act 2009.

The Commission is not seeking further responses except as to one issue- the name of the scheme.  Those with suggestions are invited to contact Olivia.Bird@lawcommission.gsi.gov.uk by 23 June 2016.

JM-Time to step up

Charles J has handed down a stinging judgment in Re JM and others [2016] EWCOP 15– the latest instalment in the sequence that started with Re X [2014] EWCOP 25. (See also Re X [2014] EWCOP 37, Re X [2015] EWCA2015. and Re NRA [2015] EWCOP 59.

The case concerned the requirements of a process to authorize the deprivation of liberty of adults lacking capacity to consent to their living arrangements, where the statutory scheme set out in Schedule A1 MCA 2005 (“DOLS”) is not available, for example those living in supported living. The only “procedure prescribed by law” for the purpose of Article 5 is an application to the court. New legislation to fill the gap is anticipated in the form of the Law Commission proposals but this is some way off.

All the earlier cases have grappled with the question of the “very essence” of Article 5. What is the right balance between a proportionate and “streamlined” process and procedural safeguards for the vulnerable person at the centre of the case? In particular how can they participate in the process?

In NRA Charles J held that the appointment of a representative under Rule 3A would fulfill the requirements of Article 5, in cases that are uncontentious (and this is an important qualification). He noted that there were some case where there was literally no one available to take on this role and asked for test cases to be listed before him.

The cases of Re JM and others were duly heard on 3 and 4 December and 13 January 2016. He heard from the applicant statutory bodies, the Secretaries of State for Justice and Health and the Official Solicitor. The Law Society was given permission to file submissions.

Charles J reiterated the potential for Rule 3 A representatives – often in the form of advocacy services commissioned by local authorities- to provide the required standards of fairness which the streamlined process needs.

He held that – irrespective of the investigatory role of the COP and the duty of disclosure on applicant authorities- a fair procedure for the purpose of Article 5 and the common law must involve “someone assistance from someone on the ground who considers the care package through P’s eyes” (§140).

The problem is that of availability. He described the case as an opportunity for central government to “face up and constructively address the availability in practice of such Rule 3A representatives” (§17). He concluded that central government had failed to take this up and instead sought to pass the responsibilities to local government and criticized the “avoidant approach that prioritises budgetary considerations over responsibilities to vulnerable people” (§19).

Unsurprisingly he held that the COP should not attempt to direct local authorities to take steps to identify or provide a Rule 3 A representative (§24 and ±102-103). The primary responsibility to put the court in the position where it can meet the minimum requirements of fairness is on central government or on central government together with applicant authorities (§24).

Charles J has therefore taken the following steps in all cases bar one – VE- where a representative became available:

1. He joined the MoJ and DoH as parties;
2. Invited the parties to identify an immediately available Rule 3A representative or an alternative procedure;
3. He stayed the applications until such steps had been taken with liberty to apply.
Importantly he held that this order should be made by the COP in similar cases. (§26)

He provided a list of options that could be taken by central government to break the stalemate that will now see government departments joined in potentially hundreds of cases:

1. Enter into contracts with advocacy providers
2. Provide local authorities with resources so that they can enter into contracts
3. Set up a pool of Accredited Legal Representatives with the support of the Lord Chancellor
4. Increase resources to the Official Solicitor.
5. Make changes to legal aid
6. Provide resources to extend the range of s49 visitors.
7. Take a case to the Supreme Court and invite it to re-visit Cheshire West.

In the course of the judgment Charles J:

1. Accepted that a change to legal aid regulations to permit non-means tested legal aid in both contentious and non-contentious DOL welfare hearings could prove part of a solution (together with the creation of ALRs) (§73)
2. Criticised the Secretary of State for seeking to “pass the parcel” to local authorities without addressing the problems they identified (§85)
3. Quoted from detailed evidence from local authorities demonstrating the levels of pressure in advocacy providers (which will come as no surprise to providers) (§96).
4. Found that full and investigative legal aid is not properly available for any process that does not require a hearing (because of the requirements in the Civil Legal Aid (Merits) Regulations 2013) (§114)
5. Agreed with the Law Society that although some solicitors carry out work in streamlined cases under legal help, this does not sit easily with the underlying purpose of legal help (§120)
6. Expressed doubt over the suggestion by the LAA that the sufficient benefit test for legal help might not be met if P is already represented by an experienced Rule 3A representative (§121)
7. Expressed the view that the use of legal help is not a viable option because of the level of payments (§123)
8. Accepted the Law Society’s evidence about the difficulties in increasing the number of matter starts (§124).
9. Warned of the dangers to local authorities of relying on a welfare order that is not underpinned by a fair procedure (§133).

In a separate judgment, Re VE [2016] EWCOP 16, Charles J endorsed a useful guidance note for family members contemplating acting as Rule 3A representatives, explaining their role and responsibilities.

 

Re X- the never-ending story.

Re NRA

 

Charles J has today (25 September) handed down the judgment in Re NRA [2015] EWCOP 59, sometimes described as Re X (2).

 

Summary

 

The case concerned welfare orders sought in respect of ten individuals whose care arrangements involved deprivation of their liberty. He described it as part of the “fall out” from the majority judgment in P v Cheshire West.

 

The case considered the procedural safeguards needed and at the heart of the case was the question as to whether P should be joined as a party. The Re X litigation had thrown up contradictory obiter views in respect of applications (which were referred to as “judicial detention” cases) that were seen as uncontentious. The President of the Court of Protection had delivered two judgments (Re X (1) and Re X (2)). The Court of Appeal judgment had concluded that the initial Re X judgments had been ultra vires. Therefore the Court of Appeal did not have jurisdiction to consider the appeal, but had strongly indicated what they would have done had they been able to do so, and all three judges considered that P should be a party.   The Court of Appeal had not considered ancillary issues such as, if P is always a party, who should act as litigation friend and whether there should be an oral hearing.

 

The cases were described as examples of “benevolent” arrangements that “many find difficult to characterize as a deprivation of liberty” (taken from the comments of Baroness Hale at para 10 in P v Cheshire West).

 

Charles J noted that in Cheshire West Baroness Hale referred to the need for “periodic checks” and suggested that these should not be stigmatizing. He cast doubt on whether this reflected the experience of family carers and noted that any simplified solution should recognize the central role of families and carers [para 12].

 

His approach was to consider what was required to satisfy requirements of common law and Convention rights, which he grouped under the heading “the safeguards” [para 24] and then what procedural steps would satisfy these in a practical effective and speedy way in cases of deprivation of liberty. Identifying the Safeguards entailed considering alternative ways of guaranteeing procedural fairness (“the requirements”) and whether these were likely to work (“the Effects”) [para 25].

 

Charles J acknowledged that the instinctive reaction of lawyers in England and wales would be that P should be a party in all cases in the Court of Protection because he will be affected and bound by them [para 34]; but that consideration of the fact that the overwhelming majority of cases relate to property and affairs and are uncontentious indicates that fairness does not always require this. He applied to the Court of Protection the comment in Re R (Care; Disclosure; Nature of Proceedings) [2002] 1 FLR 755 that family cases have both adversarial and investigatory aspects [para 36]. The requirements of fairness will be different depending on whether a case is or is not contentious. An independent check on each of the property and affairs cases – and deputyship applications- would be disproportionate; hence the presumption that P need not be a party in such cases.

 

The purpose of ss5 and 6 MCA was again to allow day to day decisions to be made by those involved in caring for P [para 40]. The test for such interventions (ie, is the intervention the least restrictive and in P’s best interests) is not different in substance from the test to be applied in Article 5 cases [para 41].

 

Moreover some adults with capacity are objectively deprived of their liberty by their care packages but have no alternative but to accept this as they lack the resources to bring judicial review proceedings [para 42].

 

Charles J accepted that a balance needed to be struck in order to acknowledge the risk that an apparently uncontentious package in P’s best interests may not in fact be either; and acknowledged the advantage for P of an outside check [para 44].

 

In many cases the appointment of a family member or friend, or the Official Solicitor will add little value other than to confirm the accuracy of information provided (and in some cases to uncover inaccuracies) [para 51].

 

Reviewing the statutory scheme under the MCA and DOLS Charles J noted that the Court does not determine whether P should or should not be deprived of his liberty but makes a determination of his best interests the corollary of which may be a deprivation of his liberty and thus require additional safeguards eg reviews and whether P should be a party [para 73]. The existence of a deprivation of liberty may further have relevance to the question of damages for breach of Article 5.

 

Although the Official Solicitor had agreed to accept an appointment to act under specific funding arrangements in 8 of the 10 cases (whereby some solicitors had agreed to carry out some preliminary work pro bono) the Official Solicitor had indicated that he would reach saturation point in the future absent additional funding.

 

Under the heading “legal aid” Charles J noted that the Lord Chancellor had been reviewing the impact of Cheshire West and the House of Lords recommendations to end the disparity between those detained under DOLS and those detained under the MCA for some time [para 95]. He noted that full representation would only be granted if there was to be or was likely to be a hearing [99 onwards] and rejected the suggestion that an oral hearing was always necessary and should not be listed simply to access legal representation.

 

He took the view that legal help would not be available once proceedings were issued and P was represented by a litigation friend [91] and even if this were incorrect the means requirements precluded this as a source of funding in most cases.

 

He concluded (correctly) that legal aid will only be a solution if the case proves contentious and requires a hearing.

 

He did not agree that a rule 3A representative would resolve the issue [116] as this did not provide P with the status of a party. He rejected the Law Society’s submission that an ALR could never be appointed in a case involving deprivation of liberty [117].

 

He noted the impact on resources of the Court of Protection of the joinder of P in all cases, as well as on the resources of litigation friends [124].

 

He concluded that a litigation friend need not always act through a solicitor. A litigation friend is not a party [143]. In comments which emphasise the rapprochement between the Court of Protection and the Mental Health Tribunal worlds, he referred to his judgment in YA v CNWL, where he likened the role of the appointed representative under TPR 11(7)(b) to a litigation friend who may sometimes have to over-ride P’s wishes. He returns to this analogy when considering the role of the RPR.

 

At paragraphs 158 onwards Charles J considered the availability of family or friends as potential litigation friends to P. This can be replete with difficulties where there is family conflict (as in Re UF) or a dissonance between the views of P and of his family (as in Re AJ).

 

In a comment which sits uncomfortably with the judgement of Baker J in Re AJ, Charles J does not agree that the RPR should challenge a standard authorization whenever P objects; but instead should decide whether to issue at all and then should only advance arguable points (again analogous to his views about the role of the Tribunal representative in YA): para 171-2.

 

Part 3 of the judgment contains the discussion on the question whether the Requirements and the Effects mean that P must be a party to ALL applications for welfare orders seeking a deprivation of liberty. He concludes that the answer is “no” and that he prefers the obiter reasoning of the President to the Court of Appeal: para 177.

 

This is because:

 

  • what fairness requires will depend on the context [para 187] where Charles J noted that in para 57 of the judgment in Winterwerp the court concluded that an Article 5(4) compliant process must “have a judicial character and gives the individual concerned guarantees appropriate to the kind of detention in question” [para 187 (iii)].
  • The comments in RP vUK about the margin of appreciation, which takes into account “all relevant factors” including the nature and complexity of the issue and what was at stake for P” [para 187 (v)].

He acknowledged the need to protect “the very essence” of Article 5 rights which will vary with each case [para 190].

 

The heart of the judgment is Charles J’s conclusions as to the “essence” of the rights guaranteed by Article 5.

 

These are set out below:

“The combination of the requirements of Article 5(1) and 5(4) to the initial decision making and the challenge of the decision made (see paragraph 182 above) shows that, when in reliance of Article 5(1)(e) there is or is going to be an objective deprivation of liberty, the essence of Article 5 is to provide safeguards that put a person who lacks the relevant capacity in a sufficiently equivalent position to a person who has that capacity and so who could himself:

  1. consider, test and decide between competing provisions for his care or treatment,
  2. consent to one of them, and
  • keep under review and challenge the arrangements put in place.

This gives rise to the need for a process that is directed to ensuring that the steps referred to in paragraph 164 (i) to (iii) above are adequately carried out or that their subject matter is adequately investigated by the court. Namely:

  • the elicitation and communication to the court of P’s wishes and feelings and the matters referred to in s. 4(6) of the MCA without causing P any or any unnecessary distress,
  • the critical examination from the perspective of P’s best interests, and with a detailed knowledge of P, the pros and cons of a care package, and whether it is the least restrictive available option, and
  • the review of the implementation of the care package and changes in P’s behaviour or health.

and in his view require

 

  • elicitation of P’s wishes and feelings and the matters referred to in s4(6) MCA “without causing P any or any unnecessary distress”;
  • critical examination of the pros and cons of the care plan from the perspective of P’s best interests and in the context of the least restructive alternative and
  • the review of its implementation and changes in P’s behaviour and health.”

 

The minimum standards required of procedural safeguards will vary from case to case and within the exceptions to Article 5, and within the issues which arise in each case [para 193]. He considers this consistent with Baroness Hale’s comments about the possibility of simplifying the safeguards in Cheshire West [para 195] which support the proposition that the COP rules can be applied flexibly.

 

Under the heading “Flaws and gaps in the reasoning of the Court of Appeal” [para 197 onwards] he criticizes the reasoning of Black LJ for treating “all deprivations of liberty as being effectively the same for the purpose of the application of the procedural safeguards” [para 205]. He distinguishes cases where deprivation of liberty is authorized purely because of P’s best interests from secure accommodation cases relating to children and these involve factors other than the paramountcy principle (such as risk to others, which also features in decisions to detain under the MHA); and this is relevant to the minimum standards question.

 

Nor does the Court of Appeal recognize that the relevant comparator is with an adult with capacity who consents to the deprivation of liberty because this is the role of the court under s16 (circular!- possibly an argument for reduced safeguards on review).

 

 

At para 215 Charles J refers to his conclusion in YA at paras 39-41 that legal representation is not a minimum requirement in all cases. He considered that in many cases family members will be best placed to act as litigation friends and provides examples from the 10 cases before him.[219-224].

 

At paragraphs 223- 229 Charles J considers the information provided in the streamlined procedure and how this could be improved. He recommends additional information, such as- importantly- details of when supervision is provided; use of sedation or assistive technology; what would happen if P tried to leave, and statements from those providing care to P [225].

 

He suggested that information should also be provided about any tenancy agreement; the participation of family and friends; and why it is considered that the case can be dealt with on the papers.

 

As litigation friends do not need to instruct solicitors; and as a hearing is not needed in all cases, there is very little benefit in making P a party and appointing a family member as a litigation friend rather than as a Rule 3A representative and where this is an available option this will provide P with the requisite safeguards [231-2]. There should be a direction to keep the care package under review. He considers that this can reliably secure P’s participation without making P a party and thus falls within the exceptions to the need for party status identified by Black LJ in the Re X judgment.

 

Where there is not a family member or friend who can be appointed this should not require joinder of P but instead the court should consider the use of s49 reports and summonses; and the “much better solution” of the Secretary of State for justice of appointing “Rule 3A representatives identified by the local authority”. He urged the Secretary of State and local authorities to consider “urgently” how this solution can be provided on the ground and recognized that it this not available this will need to be addressed [265-7].

 

He expresses the view that his conclusions do not discriminate for the purposes of Article 14 [para 268].

 

His conclusions are summarized in 269:

 

“A brief summary of my conclusions is that:

  • P does not have to be a party to all applications for welfare orders sought to authorise, and which when they are made will authorise, a deprivation of P’s liberty caused by the implementation of the care package on which the welfare order is based.
  • In two of the test cases before me I have made orders that reflect that conclusion and my conclusion that the procedural safeguards required by Article 5 are (and are best) provided in those cases by appointing a parent of P as P’s Rule 3A representative. As such, that parent as a continuation of the dedicated and devoted support given by P’s family to P and directed to promoting P’s best interests, in a balanced way, can best provide (a) the court with the information it requires about the care package and P, and (b) P’s participation in the proceedings. Also, that parent can and in my view will monitor the implementation of the care plan and so initiate any challenge to it or review of it that the parent considers should be made in P’s best interests.
  • I do not have a test case before me in which (a) P has not been joined as a party and the Official Solicitor has not agreed to act as P’s litigation friend, and (b) the appointment of a family member or friend as P’s Rule 3A representative without joining P as a party is not an available option. Such a test case or cases should be listed for hearing.
  • In contrast to the Court of Appeal in Re X and subject to further argument in such a test case or cases, I consider that the way in which the Court of Protection can at present best obtain further information and P’s participation in such cases is for it to exercise its investigatory jurisdiction to obtain information through obtaining s. 49 reports or through the issue of a witness summonses. This keeps the matter under the control of the court rather than invoking the necessity of appointing a litigation friend with the problems and delays that history tells us this entails and will entail and I have concluded is, or shortly will be, not fit for purpose.
  • I do not for a moment suggest that absent further resources being provided there will not be problems and delays in taking the course referred to in paragraph (4). Also, and importantly, I recognise that it would be focused on Article 5(1) and would not provide for monitoring on the ground until it is repeated from time to time for that purpose. But, the appointment of a litigation friend will also not provide that monitoring.
  • In such cases the argument advanced by the Secretary of State before me that a Rule 3A representative identified by the local authority be appointed shows that if this was a practically available option it would replicate the input that I have decided can be provided by an appropriate family member or friend and so satisfy the procedural safeguards required by Article 5 and common law fairness in non-controversial cases without joining P as a party.
  • That replication is an obvious solution that will provide the necessary safeguards more efficiently and at less expense than either
    1. the making of orders for s. 49 reports and the issuing of witness summonses perhaps coupled with more frequent reviews, or
    2. joining P as a party.
  • So I urge the Secretary of State and local authorities to consider urgently, and in any event before a test case or cases of this type are before the court, how this solution can be provided on the ground.”

Comment:

 

This is a decision focussed on practical solutions. It is of note however that much reliance is placed on the availability of resources – the Rule 3A representatives. There will of course be cases where family members and friends are able and willing to step into this role. There will be many other cases where P is unbefriended. In these cases, the court has two options. The first is to make use of s49 reports and the power to issue witness summonses to elicit the required information. This appears quite onerous, and can also be contentious- see the recent decision in RS. The second is the solution identified by the Secretary of State which is to appoint Rule 3A representatives “identified by the local authority.”

There must be some doubt as to the ability of local authorities- already struggling to meet their obligations to provide IMCA and Care Act advocacy- to conjure up another group of individuals who will step in and provide the safeguards needed. Nor is there any consideration given as to how these representatives will be funded.

The comments on YA and Re AJ can be seen as obiter as both judgments related to quite different scenarios. However it is noteable that in paragraph 145 Charles J appears to go further than he went in the YA judgment by expressly referring to the need for litigation friends (and by analogy Rule 11(7) representatives) to over-ride the wishes and feelings of patients without capacity.

It is worth remembering that those appointed as “Rule 3A” representatives may ask for directions under COPR 148A, which could include a request for P to be joined and a litigation friend appointed.

The possible use of “accredited legal representatives” (ALRs) if they become available was dealt with quickly at paragraph 117. There is currently no such panel of ALRs (although there is also no cohort of rule 3A representatives to be called on by local authorities). This would have been a practical solution at least in cases where P is entitled to legal aid. It is noted that in Re PD Baker J encouraged the possible use of ALRs in Schedule 3 cases. ALRs appointed in Re X types cases would have been well placed quickly to scrutinise and identify which cases require contested hearings and which really are uncontentious.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Re X considered (and limited)

The fall out from Re X continues.   A hearing has been listed (in public) for 30-31 July before Charles J to consider the matters raised in MOD & Ors [2015] EWCOP 47, with a number of other issues of general application.

In the interim, Baker J has had cause to consider Re X and Rule 3A on the very first day of the latter’s life.  In HSE Ireland v PD [2015] EWCOP 48, Baker J was asked to consider whether the subject of an application for recognition and enforcement of a foreign protective measure providing for their deprivation of liberty in England and Wales had to be made a party to the English proceedings.   This case, the sequel to HSE Ireland v PA & Ors [2015] EWCOP 38, required him to consider both the effect of Re X and the scope of the powers available to the court under Rule 3A.   In relation to Re X Baker J noted that:

“14. […] the Court concluded that the President had no jurisdiction to determine the issues upon which the appellants were appealing and, accordingly, the Court of Appeal had no jurisdiction to entertain the appeals. It could then be argued that the observations of the judges of the Court were (at best) obiter dicta or (possibly) merely dicta. It would, however, be extremely unwise for any judge at first instance to ignore what was said by the Court of Appeal. On the contrary, I consider that I must treat the dicta as the strongest possible indication of how the Court of Appeal would rule on the question before it, in the event that the issue returns to that Court as part of a legitimate appellate process.”

Baker J held that:

31.  In Re X, the judges of the Court of Appeal were considering proceedings for orders authorising in the deprivation of liberty by the Court of Protection exercising its original jurisdiction under the MCA 2005. They were not asked to consider applications for the recognition and enforcement of foreign orders under Schedule 3. Their clear statements of principle, however, serve as a strong reminder of the importance to be attached to ensuring that P’s voice is heard on any application where deprivation of liberty is in issue.”

Hearing P’s voice was, though, at the heart of the process of recognition and enforcement.  Therefore, when carrying out the limited review of the process before the foreign court mandated by Articles 5 and 6 ECHR, the Court of Protection “must therefore bear in mind the observation of Black LJ at paragraph 86 that ‘it is generally considered indispensable in this country for the person’s whose liberty is at stake automatically to be a party to the proceedings in which the issue is to be decided.” To my mind, however, where the adult has been a party and represented in the proceedings before the foreign court, it is not ‘indispensable’ for that adult also to be a party before this court on an application for recognition and enforcement of the foreign order, given the limited scope of the enquiry required of this court when considering an application under Schedule 3.”

Baker J continued

“[e]ach case will turn on its own facts. In some cases, the court will conclude that the adult needs to be joined as a party immediately. In other cases, the court will adopt one or other of the alternative methods provided in Rule 3(A)(2). In a third category of case, the court will be satisfied on the information before it that the requirements of Schedule 3 are satisfied without taking any of the measures provided by Rule 3A(2)(a)-(d). In very urgent cases, the court may conclude that an interim order should be made without any representation by or on behalf of the adult, but direct that the question of representation should be reviewed at a later hearing. Such a course seems to me to be consistent with the analysis of Black LJ at paragraph 104 of Re X. In every case, however, when carrying out that analysis, the court must be alive to the danger identified by Black LJ, at paragraph 100 in Re X that the process may depend ‘entirely on the reliability and completeness of the information transmitted to the court by those charged with the task’ who may ‘be the very person/organisation for P to be deprived of his liberty.'”

Baker J anticipated that in the majority of applications for recognition and enforcement of this nature, joinder of the adult as a party will be considered necessary, but that in the majority of cases it will not.   He further noted that the flexibility provided for by Rule 3A was well-suited to Schedule 3 applications, and expressed the hope that a panel of Accredited Legal Representatives would be swiftly established because the appointment of an ALR would in many cases facilitate a quick but focussed analysis of the particular requirements of Schedule 3.   Pending such appointment, the court would need to consider in each case what other Rule 3A step should be taken.

Baker J emphasised that this decision was taken in the an area “where the principles of comity and co-operation between courts of different countries are of particular importance in the interests of the individual concerned. The court asked to recognise a foreign order should work with the grain of that order, rather than raise procedural hurdles which may delay or impeded the implementation of the order in a way that may cause harm to the interests of the individual. If the court to which the application for recognition is made has concerns as to whether the adult was properly heard before the court of origin, it should as a first step raise those concerns promptly with the court of origin, rather than simply refuse recognition.”   Further, “The purpose of Schedule 3 is to facilitate the recognition and enforcement of protective measures for the benefits of vulnerable adults. The court to whom such an application is made must ensure that the limited review required by Schedule 3 goes not further than the terms of the Schedule require and, in particular, does not trespass into the reconsideration of the merits of the order which are entirely a matter for the court of origin.

Comment

Baker J’s conclusion as to the status of the dicta in Re X is not surprising.  Nor, I suggest, is the conclusion that he reached as to how those dicta apply in the narrow (but important) field of recognition and enforcement.   It is clearly of the highest importance that the individual concerned is properly heard (or properly enabled to participate) before the court that is taking the decision to deprive them of their liberty.   It is not immediately obvious why it is that they should then need to be joined as a party to proceedings for recognition and enforcement of that order before the Court of Protection, so long as the COP is both enabled – and indeed required – to assure itself that the individual in question has been so heard.

Re X – the Court of Appeal pronounces

Summary

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 [2015] 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 [2014] EWCOP 25 and [2014] 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.

Black LJ

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).

Gloster LJ

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)

Moore-Bick LJ

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).

 Comment

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 [2015] EWCOP 39).