Stress-testing Schedule 3: cross-border placements and the Court of Protection

In Re PA, PB and PC [2015] EWCOP 38, Baker J has conducted a detailed analysis of the jurisdiction of the Court of Protection to recognise and enforce foreign protective measures under Schedule 3 to the MCA 2005.    That Schedule represents the implementation in English law of obligations contained within the 2000 Hague Convention on the International Protection of Adults (‘the Convention’) ((which the United Kingdom has ratified in respect of Scotland, but not England).

The background concerns three young Irish individuals with complex mental health needs, all of whom were considered by the Irish Health Services Executive and the Irish High Court to require treatment in England because suitable treatment was not available in the Republic of Ireland.    The Irish High Court made orders under its inherent jurisdiction in relation to each of the individuals providing for their detention, care and treatment at facilities run by St Andrew’s Healthcare.   Whilst each of the individuals were, in principle, detainable under the provisions of the MHA 1983, the Irish High Court considered in each case that they wished to retain jurisdiction over the individuals so as to be able to ensure that the key decisions in relation the care planning for ‘its’ citizens could be made in Ireland, rather than in England.

All three individuals were initially placed in England under arrangements made under Council Regulation 2201/2003 (‘Brussels IIR’), which (inter alia) provides a mechanism for cross-border placements in relation to children (as to which see our comment on the case of HSE Ireland v SF [2012] EWHC 1640 (Fam)).    When they turned 18, however, this mechanism ceased to be effective, and the HSE therefore sought recognition and enforcement of further Irish High Court orders under the provisions of Schedule 3 to the MCA 2005.     Such orders have been sought and made previously, including in the reported case of Re M [2011] EWHC 3590 (COP), but never on a contested basis.    Indeed, in PC’s case, the Court of Protection had already recognised and declared enforceable the initial relevant Irish order in December 2012, and recognised and declared enforceable an order providing for his transfer from one facility run by St Andrew’s to another in early 2015.

Because the cases of PA and PB raised very similar issues (and it was recognised that the same issues of principle were engaged in PC’s case), Baker J listed all three cases to be considered at the same time.   The Official Solicitor acted as Advocate to the Court in all three cases and PA and PB were represented (directly) by solicitors and Counsel (PC was neither represented nor present).   The ‘stress-testing’ that Schedule 3 to the MCA 2005 underwent in consequence was considerable.

In a detailed judgment, Baker J made a number of key findings/observations in relation to Schedule 3, set out in the paragraphs that follow (nb, these re-order slightly the paragraphs of the judgment so as to move from the general to the specific).

Schedule 3 implements, as a matter of domestic law, obligations in respect of the recognition, enforcement and implementation of “protective measures” imposed by a foreign Court regardless of whether that Court is located in a Convention country (paragraph 39).

In consequence, it is not permissible to apply one rule for Convention states and another for non-Convention states.  In other words, the Courts of England and Wales should note automatically adopt a more cautious approach when asked to recognise and enforce an order of a non-Convention state. Each case will turn on its own facts, to which the Court of Protection must apply the provisions of the Schedule, in particular the provisions as to recognition in paragraph 19 including the grounds on which recognition may be refused. Plainly the Courts of England and Wales will have proper regard to the general principles of comity in all cases, although a greater degree of caution may be required when considering orders made by certain countries (paragraph 39).

There is an important difference between the persons who fall within the general jurisdiction of the Court of Protection under the MCA and those in respect of whom protective measures taken by a foreign Court may be recognised and enforced by the Court.   The Court of Protection’s general jurisdiction exists in respect of persons who lack capacity within the meaning of s.2(1) MCA 2005; the jurisdiction of the Court of Protection under Schedule 3 arises in relation to ‘adults’ – defined for those purposes in paragraph 4(1) as a person over 16 who, as a result of an impairment or insufficiency of his personal faculties, cannot protect his interests (and who is not subject to either the 1996 Hague Child Protection Convention or Brussels IIR).   The scheme of the Convention, reflected in the Schedule, is to focus on the factual description of the adult rather than any legal test as to capacity.   In each case, the Court must look at the order and judgment of the foreign Court – and if it thinks it necessary to do so, and insofar as it is permissible to do so under paragraph 24, the evidence before the foreign Court – to establish whether the foreign Court has made a finding which is binding or, if not, whether the individual comes within the meaning of “adult” under paragraph 4(1) of Schedule 3 (paragraphs 43-4).

The scheme of the Convention which underpins Schedule 3 is to facilitate the recognition and enforcement of protective measures taken by foreign Courts save in the circumstances set out in paragraphs 19(3) and (4). The measure “is to be recognised” if taken on the grounds that the individual was habitually resident in the country where the order containing the measure was made. The grounds on which a measure may be challenged may be procedural (paragraph 19(3) or substantive (paragraph 19 (4)). By reason of paragraph 21, however, provides that for the purposes of paragraphs 19 and 20 any finding of fact relied on when the measure was taken is conclusive, there is no power to challenge the finding made in the foreign Court that the individual is habitually resident in that country.  Accordingly, a finding of a foreign Court that the individual concerned was habitually resident in that country cannot be challenged in any process to recognise or enforce a measure in this country, although the process by which the measure was ordered may be challenged (for example, if the individual was not given an opportunity to be heard) and the measure itself may be challenged (for example, if inconsistent with a mandatory provision of law of this country) (paragraph 52).

Paragraph 19(3) of Schedule 3 gives the Court a discretionary power to refuse to recognise a protective measure if certain procedural safeguards are not met. It is plain from the way in which Schedule 3 paragraph 19(3) is drafted that the Court only has a discretion to decline to recognise a foreign order if it thinks that the case in which the measure was taken was not urgent and the adult was not given the opportunity to be heard and that omission amounted to a breach of natural justice (‘thinks’ for these purposes meaning ‘concludes on the balance of probabilities) (paragraph 55).

Paragraph 19(4) of Schedule 3 gives the Court a further discretionary power to decline to recognise a measure in a foreign order in certain circumstances spelt out in the sub-paragraph. In contrast to sub-paragraph (3), these grounds upon which an application for recognition may be refused are separate rather than cumulative. Thus, the Court may refuse recognition if it thinks that (a) recognition would be manifestly contrary to public policy; or (b) the measure would be inconsistent with a mandatory provision of the law of England and Wales; or (c) the measure is inconsistent with one subsequently taken or recognised, in England and Wales in relation to the adult.   As Mostyn J had identified in Re M 19(4) (a) and (b) appear to be two sides of the same coin (paragraph 62).

By including Schedule 3 in the MCA, Parliament authorised a system of recognition and enforcement of foreign orders notwithstanding the fact that the approach of the foreign courts and laws to these issues may be different to that of the domestic court. These differences may extend not only to the way in which the individual is treated but also to questions of jurisprudence and capacity. Thus the fact that there are provisions within the Act that appear to conflict with the laws and procedures of the foreign state should not by itself lead to a refusal to recognise or enforce the foreign order. Given that Parliament has included s. 63 and Schedule 3 within the MCA, clearly intending to facilitate recognition and enforcement in such circumstances, it cannot be the case that those other provisions within the Act that seemingly conflict with the laws and procedures of the foreign state are mandatory provisions of the laws of England and Wales so as to justify the English Court refusing to recognise the foreign order on grounds of such inconsistency. In such circumstances, it is only where the Court concludes that recognition of the foreign measure would be manifestly contrary to public policy that the discretionary ground to refuse recognition will arise. Furthermore, in conducting the public policy review, the Court must always bear in mind, in the words of Munby LJ in Re L (A Child) (Recognition of Foreign Order) [2012] EWCA Civ 1157 that “the test is stringent, the bar is … set high.” (paragraph 91).

There is likely to be a wide variety in the decisions made under foreign laws that are put forward for recognition under Schedule 3.  Inevitably there may be concerns about some of the foreign jurisdictions from which orders might come. But as the Ministry of Justice observed in a letter sent to the Court, taking account of such concerns is surely the purpose of the public policy review. Although no wide ranging review as to the merits of the foreign measure is either necessary or appropriate, a limited review will always be required as indicated by the European Court in Pellegrini v Italy (2002) EHRR 2. That will be sufficient to identify any cases where the content and form of the foreign measure, and the processes by which it was taken, are objectionable. The circumstances in which Schedule 3 is likely to be invoked, and the number of countries whose orders are presented for recognition, are likely to be limited. If applications were to be made from countries such as North Korea (which are unlikely, at least in the foreseeable future), the public policy review would surely lead swiftly to identifying grounds on which recognition would be refused. It is much more likely that the orders presented for recognition will be those of foreign countries whose legal systems, laws and procedures are closely aligned to our own. Concerns of this nature can be addressed by admitting evidence of the process by which the foreign protective measures were made and general evidence relating to the legal system of the state that made the order (paragraph 92).

The Court of Protection (being bound to act compatibly with the ECHR as a mandatory provision of the law of England and Wales by its incorporation into the HRA) should on any application for recognition and enforcement conduct a limited review to satisfy itself that foreign orders presented for recognition and enforcement comply with the ECHR.  In so doing, the Court should strive to achieve a combined and harmonious application of the provisions of the ECHR and the Convention (paragraph 96).

By including Schedule 3 in the MCA, Parliament must be assumed to have permitted orders to be recognised that did not comply with other laws and procedures under the statute. As the definition of “adult” in Schedule 3 paragraph 4 plainly extends to persons who may not be incapacitated within the meaning of s.2 MCA 2005, it follows that the Court will be obliged to recognise and enforce orders of a foreign court in terms that could not be included in an order made under the domestic jurisdiction under the MCA. This is subject, however, to its discretion to refuse recognition and enforcement where that would be manifestly contrary to public policy.  Baker J agreed with and endorsed Hedley J’s conclusion in Re MN that a decision to recognise under paragraph 19(1) or to enforce under paragraph 22(2) is not a decision governed by the best interests of the individual so that those paragraphs are not disapplied by paragraph 19(4)(b) and section 1(5) of the Act. Thus it follows that the Court will be obliged to recognise and enforce a measure in a foreign court order even where applying a best interests test it would not be included in an order made under the domestic jurisdiction under the MCA. Again, however, this is subject, however, to its discretion to refuse recognition and enforcement where that would be manifestly contrary to public policy (paragraph 98).

It would not be open to the Court of Protection to refuse recognition and enforcement of a foreign order simply because the individual may have the relevant decision-making capacity and objects to the order being recognised and enforced.  Such an approach would undermine the whole purpose of Schedule 3 (paragraph 101).

Specifically in the context of a foreign order compulsorily placing an individual in a psychiatric hospital in England and Wales for treatment:

  1. The limited review required should encompass the Court being satisfied that (1) the Winterwerp criteria are met and (2) that the individual’s right to challenge the detention under Article 5(4) is effective (i.e. that they have a right to take proceedings to challenge the detention and the right to regular reviews thereafter) (paragraph 96);
  2. (Agreeing with Mostyn J in Re M), an order recognising and enforcing a foreign measure under Schedule 3 is not a welfare order as defined in section 16A(4)(b). The rules as to ineligibility in section 16A therefore do not apply. This means that the Court will be obliged to recognise and enforce orders of a foreign court depriving an individual of his liberty in circumstances in which it would not able to do so under the domestic jurisdiction under the MCA on the grounds that the individual is being treated or is treatable under the MHA as defined in Schedule 1A of the MCA. Once again, however, this is subject, however, to its discretion to refuse recognition and enforcement where that would be manifestly contrary to public policy (paragraph 98);
  3. The “conditions of implementation” provided for in paragraph 12 of Schedule 3 (which are governed by English law), are that the requirements of the ECHR are met, in particular the Winterwerp criteria and reviews of sufficient regularity to satisfy Article 5(4) (paragraph 102);
  4. Most such orders presented for recognition are likely to be of short duration, and/or in respect of persons whose capacity may fluctuate, and/or who are in receipt of a progressive form of treatment. As a result, in such cases there is likely to be repeated requests to scrutinise a succession of orders. Recognition and enforcement is likely to require close co-operation, not only between the medical and social care authorities of the two countries, but also between the Courts and legal systems. The Convention provides a mechanism using the Central Authorities but, pending ratification of the Convention, there may well be the need for direct communication between judges of the two jurisdictions (paragraph 93).

On the facts of the cases before him, Baker J considered that (1) each of the individuals: was an “adult” within the meaning of Schedule 3; (2) that each was habitually resident in the Republic of Ireland; (3) in each case that the individual was given a proper opportunity to be heard for the purposes of paragraph 19(3)(b); (4)  that in each case the individual satisfies the criteria for detention under Article 5(1)(e), namely the Winterwerp criteria; (4) that the orders of the Irish Court demonstrate that each will be afforded a regular right of review of his or her detention so as to comply with the ongoing requirements of Article 5(4); (5) that as a result recognising and enforcing the orders will not contravene the ECHR; (6) that the measures in each case are not inconsistent with any other mandatory provision of the law of England and Wales; and (7) that the measures cannot be said to be manifestly contrary to public policy.  Baker J therefore made orders providing that protective measures in the Irish orders were to be recognised in England and Wales and enforced in this jurisdiction.

Baker J also used the opportunity:

  1. To express the hope that the Court of Protection Rules will in due course be amended to incorporate comprehensive rules to support Schedule 3 as soon as possible, including rules as to allocation of applications under the Schedule.
  2. To provide that, pending the introduction of such rules, any application under Schedule 3 at this stage should be listed for a full High Court Judge in the first instance, and thereafter, all further hearings in connection with that application, and any further applications under the Schedule in respect of the same individual, should be listed before the same judge (if available) unless expressly released by him or her to another judge.
  3. To note that one issue that requires clarification by the ad hoc Rules Committee is whether a litigation friend should be appointed in cases such as those before him.   Baker J expressed the preliminary view that a litigation friend should be appointed to act for individuals who are the subject of applications for recognition and enforcement under Schedule 3 (unless, of course, that individual has capacity to conduct proceedings applying the provisions of the MCA).

Comment

Although these cases are unusual, the analysis by Baker J of Schedule 3 has ramifications going far beyond the context of compulsory placements for psychiatric treatment.   Of particular importance for practitioners are the following points.

First, the confirmation that – as in cases involving children under Brussels and Hague instruments – when we come to consider cross-border cases involving recognition and enforcement of measures taken in relation to adults with impairments, the English courts are operating in a very different sphere to purely domestic cases.    In the context of recognition and enforcement, the Court of Protection:

  1. Will not be applying the test of capacity contained in s.2(1) MCA 2005 (save in considering whether the adult has litigation capacity); and
  2.  Will not be applying the best interests test contained in s.1(5) and s.4 MCA 2005 (save in relation to implementation of the measures). In other words, the Court of Protection, and those appearing before it, has mentally to undertake a very significant gear shift in such cases.   Such a gear shift is one that many family practitioners and judges still find difficult in relation to cross-border cases involving children; it will perhaps be even more difficult in relation to adults where we are still taking baby steps in the identification of common themes and common practices across borders (and where we have yet in England and Wales to ratify the Convention…).

Second, the confirmation that the ability of the Court of Protection to refuse to recognise and declare enforceable foreign protective measures is very limited.

Third, the confirmation that, for purposes of applications for recognition and enforcement, the Court of Protection is effectively bound by the decisions of the foreign court as to the habitual residence of the individual.

Finally, the confirmation that, by passing Schedule 3 in the form that it did, Parliament opened the door to applications for recognition and enforcement to be made from any country in the world, with no ‘filter’ specific to non-Convention countries (save for the limited filter in relation to cross-border placements between Convention countries in paragraphs 19(4) and 26 which will only become relevant when the Convention in ratified in respect of England and Wales).

Cross-border matters are now part of the daily reality of very many practitioners (not least because, for these purposes, Scotland is a foreign country…).    Cases with a cross-border element will, we predict, come before the Court of Protection with ever more frequency.   And, in due course, I anticipate that much the same will be said in relation to the Convention and to such cases as has been said by Sir James Munby P in relation to the earlier Hague Conventions applicable to children and their European counterparts:

They have exposed us, often if only in translation, to what our judicial colleagues in other jurisdictions are doing in a wide range of family cases. They have taught us the sins of insularity. They have taught us that there are other equally effective ways of doing things which once upon a time we assumed could only be done as we were accustomed to doing them. They have taught us that, beneath all the apparent differences in language and legal system, family judges around the world are daily engaged on very much the same task, using very much the same tools and applying the same insights and approaches as those we are familiar with. Most important of all they have taught that we can, as we must, both respect and trust our judicial colleagues abroad.Re E (A Child) [2014] EWHC 6 (Fam)

All this, of course, suggests that everyone should:

  1. Rush out and purchase The International Protection of Adults, the only work which seeks to map out both the Convention and the frameworks for decision-making in relation to those with impairments in core jurisdictions around the world; and
  2. Identify to my co-editors and I any jurisdictions which should be included and volunteer to produce the necessary information for a chapter to be included in the next edition.

“Neary 2,” or making Article 5(4) real

In an extremely important judgment handed down on 11 February, AJ v A Local Authority [2015] EWCOP 5, Baker J has given detailed guidance as to the heavy burden that is placed upon local authorities in making sure that those deprived of their liberty in care homes (and, by extension, hospitals) are afforded effective access to the Court of Protection so as to secure their rights under Article 5(4) ECHR.   He has also confirmed again the importance of taking appropriate steps in advance where it is clear (or should be clear) that a person will be deprived of their liberty.

For those in a hurry, Baker J gave at the conclusion a series of wider lessons, which I reproduce here, although this is no substitute either for reading the balance of this note or – more importantly – the judgment itself.

“113. First, I emphasise that the scheme of the DOLS is that, in the vast majority of cases, it should be possible to plan in advance so that a standard authorisation can be obtained before the deprivation of liberty begins. It is only in exceptional cases, where the need for the deprivation of liberty is so urgent that it is in the best interests of the person for it to begin while the application is being considered, that a standard authorisation need not be sought before the deprivation begins.

114. Secondly, professionals need to be on their guard to look out for cases where vulnerable people are admitted to residential care ostensibly for respite when the underlying plan is for a permanent placement without proper consideration as to their Article 5 rights.

115. Thirdly, a RPR should only be selected or confirmed by a BIA where he or she satisfies not only the criteria in regulation 3 of the Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative) Regulations 2008 but also the requirements of paragraph 140 of Schedule A1 of the MCA. This requires that the BIA not only checks that the facts set out in regulation 3 are satisfied but also carries out an analysis and reaches a judgment as to whether the prospective representative would, if appointed, (a) maintain contact with the relevant person; (b) represent the relevant person in matters relating to or connected with the Schedule and (c) support the relevant person in matters relating to or connected with the Schedule.

116. Fourthly, the local authority is under an obligation to satisfy itself that a person selected for appointment as RPR meets the criteria in regulation 3 and in paragraph 140 of Schedule A1. If the local authority concludes that the person selected for appointment does not meet the criteria, it should refer the matter back to the BIA. 

117. Fifthly, it is likely to be difficult for a close relative or friend who believes that it is in P’s best interests to move into residential care, and has been actively involved in arranging such a move, into a placement that involves a deprivation of liberty, to fulfil the functions of RPR, which involve making a challenge to any authorisation of that deprivation. BIAs and local authorities should therefore scrutinise very carefully the selection and appointment of RPRs in circumstances which are likely to give rise to this potential conflict of interest.

118. Sixthly, an IMCA appointed under section 39 D must act with diligence and urgency to ensure that any challenge to an authorisation under schedule A 1 is brought before the court expeditiously. Failure to do so will lead to the evaporation of P’s Article 5 rights.

119. Seventhly, the appointment of a RPR and IMCA does not absolve the local authority from responsibility for ensuring that P’s Article 5 rights are respected. The local authority must monitor whether the RPR is representing and supporting P in accordance with the duty under paragraph 140 and, if not, consider terminating his appointment on the grounds that he is no longer eligible. The local authority must make sufficient resources available to assist an IMCA and keep in touch with the IMCA to ensure that all reasonable steps are being taken to pursue P’s Article 5 rights.

120. Finally, in circumstances where a RPR and an IMCA have failed to take sufficient steps to challenge the authorisation, the local authority should consider bringing the matter before the court itself. This is likely, however, to be a last resort since in most cases P’s Article 5 rights should be protected by the combined efforts of a properly selected and appointed RPR and an IMCA carrying out their duties with appropriate expedition.”

Summary

Although the principles set down by Baker J are of general application, the particular factual context in which they arose is of some importance, not least because they represent a not uncommon state of affairs.

An elderly lady, AJ, had lived for a considerable period of time in an annexe of the home of her niece and her husband (‘Mr and Mrs C’).   She developed vascular dementia and became increasingly dependent on others, in particular Mrs C.  She was, however, very reluctant to acknowledge her condition, and insistent that she could manage without any help.   In April 2013, she signed LPAs in respect of health and welfare and property and financial affairs naming Mr and Mrs C as donees.

At around this time, AJ was referred to social services by a psychiatric nurse. When a local authority case co-ordinator visited on 22nd April 2013, Mrs C raised the possibility of respite care for AJ to prevent the breakdown of the care arrangements.   In June 2013, Mrs C made it clear that she could not continue with her caring role in its current form as she and her husband had planned a fortnight’s holiday.   She said that she now felt that permanent residential care was required.   The local authority social worker offered to find the nearest suitable home for respite while Mr. and Mrs. C were away, and duly identified a home, X House, for that purpose.  It was clear that, in fact, it was hoped that if AJ settled she could remain in the care home on a permanent basis.

On 13 June, just before they went on holiday, Mr and Mrs C took AJ to X House. Upon arrival, she stated that she did not wish to be there and repeatedly asked to leave. No assessment under Schedule A1 to the MCA 2005 had been carried out prior to her arrival but an urgent authorisation under the Schedule was granted by the manager at X House on 14 June.  The urgent authorisation recorded inter alia that AJ had been placed at the home whilst her main carers, Mr and Mrs C, went on holiday for two weeks, “with a view to [AJ] staying here on a permanent basis”. On the same day, a request was made to the local authority as the supervisory body for a standard authorisation, which was granted for a period of 21 days because of the uncertainty of the situation.

Mr C was appointed AJ’s RPR, on the basis that AJ had a donee whose under the LPA permitted them to select a family member, friend of carer to be their RPR, that the donee had selected Mr C to act in that capacity and that he was eligible to be appointed.   It was clear at this stage that Mr C supported AJ continuing to be accommodated in a care home, even though it amounted to a deprivation of her liberty.  A s.39D IMCA was also appointed, a Mr R.

At the start of July 2013, AJ was moved to Y House, and remained there thereafter, subject to repeated standard authorisations.     Despite AJ’s known opposition to living at Y House, no legal challenge was made to the standard authorisations for several months.  As Baker J noted, “[t]he reasons for this failure lie at the heart of this case” (paragraph 18).   A critical reason was the lack of effective communication between Mr C and Mr R.

When Mr R and Mr C finally spoke in November 2013 Mr R realised that Mr. C was not going to initiate proceedings and after further conversations with his manager he agreed to act as her litigation friend and instruct solicitors to make an application to the Court on her behalf.  Proceedings were eventually issued in December 2013, challenging the standard authorisation made in July 2013.    Mr R was replaced in March 2014 as AJ’s litigation friend by the Official Solicitor.  Although ultimately the substantive challenge under s.21A MCA 2005 was not actively pursued, in view of evidence as to a deterioration in AJ’s condition and behaviour, and to the fact that there was no domiciliary care agency willing to offer to provide care, the Official Solicitor (1) raised concerns as to the extent to which the care plan accurately reflected the type and degree of physical interventions being used; and (2) pursued a claim for a declaration under s.7 HRA 1998 that AJ’s rights under Article 5(1), 5(4) and 8 ECHR had been breached (but not a claim for damages).     In order to determine the claim, Baker J conducted a hearing in May 2014 at which he heard oral evidence from Mr R, Mr C and the local authority’s BIA, Ms G, and then subsequently sought (and received) extensive written submissions, inter alia, on the effect of the Re X judgment).

Restraint

As a preliminary issue, Baker J addressed the question of the use of restraint and its documentation.    It became clear that the level of physical restraint being used by carers in Y House was greater than acknowledged in the care plan (and indeed, even in an amended care plan).

As Baker J noted:

25.  In supplemental submissions, Ms Butler-Cole on behalf of the Official Solicitor submitted that in any case in which physical restraint is used in the care of an incapacitated adult, any physical intervention, whether considered to amount to “restraint” or not, should be recorded in the care plan maintained by the service provider and monitored by the statutory body responsible for commissioning the person’s care. Furthermore, precise details of all physical interventions should be ascertained and documented as part of the Deprivation of Liberty Safeguards process or indeed any best interest assessment from direct discussion with care staff implementing the interventions.

 agree. In this case, whilst there may at one stage have been a discrepancy between the care plan and what was actually being provided, I am now satisfied that the local authority has addressed this issue in its amended plan. If, however, any further issue arises, or any party seeks any further declaration or order on this issue, the matter should be referred to me for further review.

Article 5(4)

Baker J provided a careful and comprehensive summary of the principles to be derived from the case-law relating to Article 5(4), which merits reproduction in full

35. In applying [the provisions of Schedule A1 to the MCA 2005], and assessing whether there was any infringement of Article 5(4) in this case, I have had regard to the case law, both European and domestic. The leading European cases are X v United Kingdom (1981) 4 EHRR 188; Winterwerp v The Netherlands (1979) 2 EHRR 387; Waite v UK [2002] ECHR 804; Shtukatarov v Russia (2008) 54 EHRR 962; Stanev v Bulgaria (2012) 55 EHRR 696, MH v UK [2013] ECHR 1008, and, most recently, Ivinovic v Croatia [2014] ECHR 964. From those authorities, the following principles can be summarised:

(1) “There is a positive obligation on the state to protect the liberty of those within its jurisdiction. Otherwise, there would be a sizeable gap in the protection from arbitrary detention, which would be inconsistent with the importance of personal liberty in a democratic society. The state is therefore obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge”: Stanev v Bulgaria at paragraph 120.

(2) The procedure required by Article 5(4) must have a judicial character and be independent of the detaining authority: X v United Kingdom, supra, para 53, MH v UK, supra, para 77(c).

(3) Article 5(4) guarantees a remedy that must be accessible to the person concerned: MH v UK, supra, para 76.

(4)  The state has an obligation to ensure that a mentally incapacitated adult is afforded independent representation, enabling them to have their Convention complaints examined before a court or other independent body: Ivinovic v Croatia, supra, para 45.

(5)  Special procedural safeguards may be called for in order to protect the interests of persons who, on account of mental disabilities, are not fully capable of acting for themselves. Where a person lacks the capacity to instruct lawyers directly, the safeguards required may include empowering or even requiring some other person to act on that person’s behalf: Winterwerp v The Netherlands, supra, para 60, MH v UK, supra, paras 77(e) and 92.

(6) Article 5(4) may not be complied with where access to a court is dependent on the exercise of discretion by a third party, rather than an automatic entitlement. Where the third party supports the deprivation of liberty, reliance on the third party to initiate proceedings may not satisfy the requirements of Article 5(4): Shtukatarov v Russia, supra, para 124.

(7) An initial period of detention may be authorised by an administrative authority as an emergency measure provided it is of short duration and the individual is able to bring judicial proceedings speedily to challenge the lawfulness of any such detention including, where appropriate, its lawful justification as an emergency measure: MH v UK, supra, para 77(a).

(8)  The likelihood of the judicial hearing leading to release from detention is irrelevant. Article 5(4) is first and foremost a guarantee of a fair procedure for reviewing the lawfulness of detention – an applicant is not required, as a precondition of enjoying that protection, to show that on the facts of his case he stands any particular chance of success in obtaining his release: Waite v UK, supra, para 59.

36. In domestic law, the fundamental principle to be applied by the Court of Protection in cases of deprivation of liberty was summarised by Peter Jackson J in Neary v LB of Hillingdon [2011] EWHC 1377 (COP) at para 202:

‘… there is an obligation on the State to ensure that a person deprived of liberty is not only entitled but enabled to have the lawfulness of his detention reviewed speedily by a court.”

Baker J noted the “guidance” given by the President in Re X as to the question of whether P needed to be joined as a party to proceedings for judicial authorisation for deprivation of liberty, and, in particular, paragraph 19, the conclusions of the President as to Article 5(4) as regards the requirements of “representation” if P is not to be a party to proceedings.   [This paragraph will be the subject of intense scrutiny on 17-8 February before the Court of Appeal].

Initial authorisation

Baker J found that it was clear that Mr and Mrs C were clearly saying before they went on holiday that they could not continue to care for AJ and that a move to permanent residential care was required.

Therefore:

47.  As it was clear that AJ would not go willingly to X House, and that such a move would only be achieved by depriving her of her liberty, the local authority, prior to that move taking place, ought to have either carried out a DOLS assessment or made an application to the Court. During the first few days of her stay at X House, there was no authorisation in place, nor was there an RPR or an IMCA appointed to support her. The fact that the first two weeks of her stay at X House were nominally labelled as “respite” care cannot justify the local authority’s failure either to instigate the DOLS process or apply to the court. The local authority plainly knew that Mr. and Mrs. C would not agree to AJ returning home at the end of their holiday and that, whatever may have been said about respite care, the move was intended to be permanent from the outset.

48. In this case, the local authority had sufficient time to commence the process of authorisation. This case therefore fell within the ‘vast majority of cases’ in which, as Chapter 3 of the Code of Practice recognises, “it should be possible to plan in advance so that a standard authorisation can be obtained before the deprivation of liberty begins”. Given the scheme of the Act is that urgent authorisations are expected to last for no more seven days save in exceptional circumstances, the local authority ought to have been able to complete the process of assessment and grant of a standard authorisation before AJ arrived at X House on 13th June. In the alternative, given the fact that AJ’s objections to being placed in residential care were clear and well-known, the local authority could have applied straight to the Court of Protection without going through the authorisation procedure under Schedule A1. As Keehan J observed in NHS Trusts 1 and 2 v FG [2014] EWCOP 30 at paragraph 101(iii), ‘the mere fact that a deprivation of liberty could be authorised under Schedule A1 does not absolve [the authority] from making an application to the court where the facts would otherwise merit it.’”

Importantly, this failure meant that there was no proper analysis of alternative options for AJ’s care, nor was she afforded any opportunity to have her views considered, before the move to X House occurred.   Baker J also found that it was irrelevant that the initial move took place, as an measure of interim support, not on the basis of s.21 National Assistance Act 1948, but rather under the statutory duties imposed by s.47(5) of the National Health Service and Community Care Act 1990. As he noted at paragraph 50: “[the consequence of the decision was that she, an incapacitated adult, was thereby deprived of her liberty. The local authority was therefore under an obligation to comply with Article 5 and it was unlawful under s.6 of the Human Rights Act 1998 for the authority to act in a way that was incompatible with AJ’s rights under that Article.”

Baker J therefore found at paragraph 51 that there had been:

 “a clear breach of the principles identified in the European and domestic case law. As the European Court made clear in Stanev v Bulgaria, supra, the state is obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge. In this case, the local authority was in breach of that obligation by failing either to instigate the standard authorisation procedure under Schedule A1 or alternatively apply direct to the Court of Protection in advance of AJ’s admission to X House.

The RPR

The core of the Official Solicitor’s case on behalf of AJ was that the local authority not to have appointed Mr C to act as RPR at all, or at least not without ensuring that he would bring proceedings under s.21A in the light of AJ’s known objections, or alternatively, having appointed him, replaced him when it became apparent that he was not going to facilitate a speedy review of her detention.

 After a detailed analysis of the (inordinately) complicated statutory provisions, Baker J concluded that Mr C was not eligible to be AJ’s RPR because:

1.  A person is only eligible to be an RPR if they will, as part of supporting the relevant person, take appropriate steps to support the person to challenge any authorisation granted under Schedule A1 (paragraph 82).   This construction of paragraphs 140(a) and (b) of Schedule A1 was supported, Baker J, noted by the Strasbourg case-law, in particular the case of Shtukatarov v Russia.

2. The evidence “manifestly demonstrate[d] that Mr. C was unwilling or at least very reluctant to represent or support AJ in challenging the authorisation because he and his wife had concluded that they could no longer safely look after her at home and he believed that it was in her best interests to live in residential care” (paragraph 84).  As Baker J noted, Mr C had immediately noted that he had a conflict of interest, and raised it with Ms G.  Ms G’s response had been to arrange for the appointment of an IMCA, but “the appointment of an IMCA cannot overcome the ineligibility of the RPR” (paragraph 84).

3.  Further, at paragraph 86, Baker J accepted the Official Solicitor’s submission that:

“the local authority ought not to have appointed Mr. C as RPR notwithstanding the fact that he was selected by the BIA. The European and domestic case law make it clear that there is a positive duty on public authorities under the Convention to ensure that a person deprived of liberty is not only entitled but enabled to have the lawfulness of his detention reviewed speedily by a court, to ensure that a mentally incapacitated adult is afforded independent representation, enabling them to have their Convention complaints examined before a court or other independent body, and not to permit access to a court to be dependent on the exercise of discretion by a third party who supports the deprivation of liberty. As the President has made clear in of Re X and Others (Deprivation of Liberty) [2014], it is not always necessary for P to be joined as a party to any proceedings, but the state is under a clear duty to ensure that he or she is able to challenge a deprivation of liberty in a process that is judicial, accessible and independent of the detaining authority. To my mind, these obligations impose on the local authority as supervisory body a duty to scrutinise the prospective RPR selected under regulations 5 to 8 before making the appointment. I do not accept Mr. Dooley’s submission that it was not open to the local authority as supervisory body to refuse to appoint Mr. C as RPR. The fact that, under regulation 11, a supervisory body may not (except where regulation 9 applies) appoint a RPR unless the person is recommended by a BIA under regulation 7 or 8 does not mean that it is obliged to appoint a person who is so recommended. Where a supervisory body has reason to believe that the person selected as RPR will not comply with the obligations under paragraph 140 of the Schedule, its duties under Article 5 compel it to refer the matter back to the BIA.

4.  Having (wrongly) appointed Mr C as RPR, the local authority as the supervisory body ought to have quickly realised (1) that AJ was extremely unhappy in residential care and wished to challenge the authorisations and (2) that Mr C was not taking any or any sufficient steps to represent or support her in pursuing that challenge. “The local authority should therefore have taken steps to replace Mr C as RPR when it became apparent that he was not intending to issue proceedings promptly and that there was not going to be a speedy review of AJ’s detention by a court, since s.21A proceedings must be brought very promptly to ensure compliance with Article 5(4)” (paragraph 90).

IMCA

Baker J was called to determine a number of questions in relation to the provisions relating to s.39D IMCAs.  In summary form, he concluded that:

1.  The functions of a section 39D IMCA are as set out in that section, as supplemented by Schedule A1, and concern matters relating to the deprivation of liberty provisions under the Schedule. An IMCA appointed under section 39D does not have a broader, general role of representing or supporting P, and is not under a general duty to assist in determining what is in P’s best interests but, rather, to perform the specific functions set out in section 39D(7), (8) and (9) [i.e. in very broad terms, supporting the RPR and the relevant person to understand matters relating to the authorisation and helping them exercise their rights to apply to court or for a Part 8 review] (see paragraph 108);

2. Where P has executed a LPA, the duty to appoint an IMCA under section 39D is not excluded under section 40(1)(b) unless the donee of the LPA is authorised to make decisions in relation to the matters in section 39D(7) and (8) (paragraph 112);

3. Standard health and welfare LPAs do not grant authority to the donee to make decisions relating to matters to which the duty to appoint an IMCA under section 39D(2) relates (paragraphs 115-6);

4. The fact of the grant of a standard health and welfare LPA will not therefore relieve a local authority of its duty to appoint a s.39D IMCA if any of the three cases in 39D(3),(4) or (5) arise [i.e. the relevant person or their RPR request one or the local authority consider the appointment of one is – in essence – necessary to ensure the person’s rights are secured] (paragraph 116).

On the facts of the case, therefore, he concluded that, in fact, a s.39D IMCA had to be appointed.

Very importantly, Baker J found that the fact of the appointment of the s.39D IMCA did not absolve the local authority of further responsibility:

“125. The principal errors committed by the local authority in this case were, as analysed above, the failure to initiate the authorization process prior to the 13th June 2013 and wrongly appointing Mr. C to act as RPR. In my judgment, however, the local authority’s obligations did not stop there. The local authority thought that it would be meeting its obligations by appointing an IMCA and making resources available to assist the IMCA to act as litigation friend. As set out above, the appointment of an IMCA under section 39D was entirely appropriate and, although Mr. C was uncertain about how to take matters forward, I accept the local authority’s case that resources were in fact available, for example to assist an IMCA acting as litigation friend. In most cases, that would in all probability have been sufficient. In this case, however, the local authority knew that Mr. C was unwilling or at least very reluctant to represent or support AJ in challenging the authorisation because he and his wife had concluded that they could no longer safely look after her at home and he believed that it was in her best interests to live in residential care. In those circumstances, I find that the appointment of Mr. R and the provision of resources to assist him in his role as IMCA did not absolve the local authority from its continuing obligation to ensure that AJ’s rights under Article 5(4) were respected. The local authority knew at all times that AJ did not wish to be in X House or Y House. In those circumstances, I consider that the local authority, in addition to monitoring the actions of Mr. C as RPR and taking steps to replace him if appropriate, should have made enquiries as to why the IMCA was not taking steps to ensure that the right to apply to the court was being exercised.”(emphasis added)

Baker J emphasised that – as a last resort – the local authority should have considered bringing proceedings before the court itself.   This was “[p]lainly this is a last resort, because of the comprehensive and complex provisions for the selection and appointment of RPRs and the appointment of IMCAs are followed, and if RPRs and IMCAs appointed under these provisions carry out their responsibilities as they should, the rights of an incapacitated person to challenge a deprivation of liberty normally will be protected” (paragraph 126).

However, the local authority “remained under a continuing and positive obligation to “ensure that AJ’s Article 5(4) rights were respected. Thus, if it was not satisfied that the IMCA was taking the necessary steps to apply to the court, and if in all the circumstances it considered such a course to be appropriate, it should have brought court proceedings itself.” (paragraph 126, emphasis added).

Conclusion

Baker J found that the case told a sorry tale of a series of failures by a number of people to ensure that the procedures designed to ensure that AJ’s rights under Article 5 were respected, for which ultimate responsibility lay with the local authority.   He therefore granted the declarations sought by the Official Solicitor.

Wider practice

As set out above, Baker J then pulled the threads together to give wider guidance for practitioners.

Comment

Whilst much of the judgment concerned extremely technical interpretation of the provisions of the MCA and the relevant secondary legislation (much of which strongly suggests that the whole regime is beyond repair as a statutory mechanism), it is, at heart, a vitally important assertion of the importance of public bodies taking appropriate steps:

  • To recognise when apparently beneficent steps will lead to a deprivation of liberty;
  • To be honest about what exactly those steps will be;
  • To pause before taking those steps to check whether, in fact, they are necessary or whether a less restrictive option can be pursued;
  • If they are necessary, to ensure – wherever possible – that the necessary authority is in place before they are taken;
  • To recognise the continuing and positive obligation imposed upon local authorities to ensure that those subject to standard authorisations are afforded an effective right to challenge their detention before the Court of Protection.

The case is also a clear recognition of the ‘hard-edged’ nature of rights under Articles 5(1) and 5(4).   It is clear that Mr C thought that he was acting in AJ’s best interests, and that, as a family member, he had a more complete and rounded picture of the circumstances than an RPR who had only met AJ on a limited number of occasions.   However, through a truly Lemony Snicket series of events, her family members and the local authority ended up inadvertently conspiring to preclude her raising her fundamental objections to being “dumped” (as her friends perceived it) in a care home.

The final point relates to the preliminary point determined by Baker J in relation to the need for honesty in care plans as to exactly what level of restraint is being imposed upon an individual.  This point is equally, if not more, important in relation to those in respect of whom Re X applications are being made –where, as matters currently stand, the court will only have the applicant’s word for what is going on…

[footnote – for further excellent comment on the case which arrived as I was writing this, see Lucy Series’ post here]

A depressing and inexcusable set of affairs

District Judge Mort has approved a damages settlement in another troubling case involving the wrongful removal and detention of a vulnerable adult.  Essex County Council v RF and others concerned P, a man of 91 with dementia, who was removed from his home of 50 years and kept in a locked dementia unit for over a year, against his will, with no consideration given to any less restrictive alternative or indeed to the possibility that he might have capacity to make decisions about his evidence himself.

The brief judgment merits reading in full as a worrying catalogue of disregard of the principles and process of the Mental Capacity Act.  The judge summarised these as follows:

    1. As far as P was concerned ECC failed:

•    To heed the presumption in favour of his capacity

•    To adopt the course of action which was less restrictive of P’s rights and freedom of action.

•    To have regard the independent evidence of P’s capacity by either ignoring it or immediately countermanding it

•    To take seriously or act upon his consistently expressed wish to return home

•    To appoint an IMCA for him

•    To refer the matter to the court

These were substantive and not technical breaches.  Fortunately after 17 months the local authority agreed to support P’s return home and he has now moved back home.  Although the COPRs do not themselves provide for approval of damages, the judge was able to so under the Civil Procedure Rules.  He reviewed the level of damages in known cases and concluded that this suggested a level of between £3000 and £4000 per month.  ECC agreed to pay P’s costs, to waive the care home fees and, importantly, to disregard the damages when assessing P’s liability to contribute to his care costs.

The Re X process goes live

The much-anticipated new procedure for the judicial authorisation of deprivation of liberty in settings outside hospitals and care homes comes into force on 17 November.  The procedure implements the judgments of Sir James Munby P in Re X (1) and Re X (2).  It is set out in the new Part 2 of Practice Direction 10A (Deprivation of Liberty), and is accompanied by a new application form (with annexes), designed exclusively for applying for court-authorised deprivations of liberty.   All the materials are available here.

The Court of Protection has set up a dedicated team to deal with applications made under the Re X procedure.  The contact details are:

Court of Protection

P.O. Box 70185

London

WC1A 9JA

 

DX 160013 Kingsway 7

Telephone: 0207 421 8665

Email: COPDOLS/S16@hmcts.gsi.gov.uk

Re X (2): further amplification of judicial deprivation of liberty process

 On 16th October 2014 Sir James Munby P handed down his second judgment in Re X and others (Deprivation of Liberty) [2014] EWCOP 37.  In this he expanded on the preliminary judgment handed down on 7th August 2014 (Re X and others: Deprivation of Liberty [2014] EWCOP 25).

This new judgment does not answer all the questions which were before the President when he heard this case in June 2014, particularly some relating to the possible extension of urgent authorisations by the court (a further judgment addressing these points is still awaited)  It does however expand upon three questions:

 “(7)      Does P need to be joined to any application to the court seeking authorisation of a deprivation of liberty in order to meet the requirements of Article 5(1) ECHR or Article 6 or both?

(9)        If so, should there be a requirement that P … must have a litigation friend (whether by reference to the requirements of Article 5 ECHR and/or by reference to the requirements of Article 6 ECHR)?

(16)      If P or the detained resident requires a litigation friend, then: (a) Can a litigation friend who does not otherwise have the right to conduct litigation or provide advocacy services provide those services, in other words without instructing legal representatives, by virtue of their acting as litigation friend and without being authorised by the court under the Legal Services Act 2007 to do either or both …?”

The president answered the first question in the negative, using the analogy of wardship proceedings, where wards do not always have to be a party.    Drawing on his conclusions in RC v CC (By Her Litigation Friend the Official Solicitor) and X Local Authority [2014] EWCOP 131, [2014] COPLR 351, namely that the principles of disclosure in the family division also applied in the COP, and the essentially welfare-based nature of COP proceedings, he concluded that there is no distinction to be drawn between the need to join P in a COP case and the need to join a child who is a ward.

Turning to the Convention jurisprudence, the President noted P’s entitlement to the safeguards of Article 5(4) and the UNCRPD, and concluded:

Article 6 requires that P be able to participate in the proceedings in such a way as to enable P to present his case “properly and satisfactorily”: see Airey v Ireland (1979) 2 EHRR 305, para 24. More specifically, referring to Article 5, “it is essential 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, failing which he will not have been afforded ‘the fundamental guarantees of procedure applied in matters of deprivation of liberty’.”: Winterwerp v Netherlands (1979) 2 EHRR 387, para 60. This may require the provision of legal assistance: Megyeri v Germany (1992) 15 EHRR 584, para 23. There is a margin of appreciation (see, for example, Shtukaturov v Russia (2012) 54 EHRR 962, para 68), but this cannot affect the very essence of the rights guaranteed by the Convention. The Strasbourg court has made clear that deprivation of liberty requires thorough scrutiny and that any interference with the rights of persons suffering from mental illness must, because they constitute a particularly vulnerable group, be subject to strict scrutiny. So the process must meet that demanding standard.

14. More generally, P should always be given the opportunity to be joined if he wishes and, whether joined as a party or not, must be given the support necessary to express views about the application and to participate in the proceedings to the extent that they wish. Typically P will also need some form of representation, professional though not necessarily always legal.

15. So long as these demanding standards are met, and in my judgment they can in principle be met without P being joined as a party, there is, as a matter of general principle, no requirement, whether in domestic law or under the Convention, for P to be a party.”

The suggestion that P will “need some form of representation, professional though not necessarily always legal” does not appear in the first Re X judgment.

The President then turned to the question of whether P could be participate and be represented in proceedings in the COP without being a party.  He concluded there is no such objection.  If P is participating other than as a party there is no need for a litigation friend: so P could be represented without one.

If P is a party, then there is no reason in principle why the rules cannot be amended to allow P to act without a litigation friend:

“19. The next question is whether, assuming that P is a party, he is required to act by a litigation friend. The general principle is long-established, and hardly requires citation of authority, that in welfare proceedings, as in any other kind of litigation, a child or incapacitated adult can participate as a party only if represented by a litigation friend. But there are exceptions to this general rule. I mention two, though the first is now only of historical, indeed almost antiquarian, interest. In the days of the Lunacy Act 1890, although a person of unsound mind not so found by inquisition sued, like an infant, by a next friend or guardian ad litem, a lunatic so found by inquisition sued by the committee of his estate: see Daniell’s Chancery Practice pp 118-119, 121. Of more contemporary significance is rule 16.6 of the Family Procedure Rules 2010, replacing rule 9.2A of the Family Proceedings Rules 1991, which permits a child in certain circumstances to conduct proceedings without a children’s guardian or litigation friend.

23. In his submissions, Mr Jonathan Butler helpfully drew attention to the practice in the First-tier Tribunal (Health Education and Social Care Chamber), and previously in the Mental Health Review Tribunal, where the relevant rule provides for the appointment of a legal representative – not a litigation friend – where the patient, a party to the proceedings before the Tribunal, lacks capacity: see AA v Cheshire and Wirral Partnership HNS Foundation Trust and ZZ [2009] UKUT 195 (AAC), [2009] 1 MHLR 308. Mr Butler suggests that the sole question to be asked is whether the requirement for a litigation friend is necessary for P to have a voice within proceedings? The answer, he suggests, and I agree, can in part be found in the decision in that case.

24. These examples demonstrate, in my judgment, that there is no fundamental principle in our domestic law which dictates that P, if a party, must have a litigation friend. The question is ultimately one going to the practice of the particular court or tribunal. Generally speaking, the practice – the rule – has long been that those who lack capacity must have a litigation friend. But that is all.

25.  At present Rule 141(1) requires P, if a party, to have a litigation friend.

26. The requirement to have a litigation friend is compliant with, but not mandated by, the Convention: RP v United Kingdom [2013] 1 FLR 744. The Convention requirement is to ensure that P’s interests are properly represented and that does not, of itself, require the appointment of a litigation friend.

27.  Again, this is a matter which requires consideration by the Committee.”

The President repeated his view that a litigation friend could act without legal representatives but required permission of the court to act as advocate for P.

He concluded:

“36. It is not for me in this judgment to advise the Committee how to proceed. There is, however, one aspect of the matter to which the Committee will, I suggest, need to give careful consideration. It is essential that where the issue concerns P’s deprivation of liberty the Court of Protection’s processes are rigorous, so that the circumstances of the individual case are subjected, as they must be, to the strict scrutiny demanded by the Convention. Both our domestic law and the Convention impose demanding standards. But the need to meet this challenge must not be allowed to lead to a system of technical requirements which may, in the real world, operate to deny P the speedy access to a judicial determination which is the very essence of what is required. To speak plainly, the Committee will have to consider how best to craft a process which, while it meets the demanding requirement of the law, also has regard to the realities consequent upon (a) the legal aid regime and (b) the exposure of a litigation friend to a costs risk. There is no point in a system which requires there to be a litigation friend, let alone which requires the litigation friend to instruct lawyers, if the reality is that there is, because of an absence of legal aid and possible exposure to an adverse costs order, no-one willing and able to accept appointment as litigation friend. Indeed, such a system would be self-defeating. And in this connection it needs to be remembered that the Official Solicitor can never be compelled to accept appointment. Moreover, as I understand it, he is not funded to act as a litigation friend in deprivation of liberty cases, so he is dependent on external funding which in many cases will not be available in the absence of legal aid.