Case Management – Page 4 – Court of Protection Handbook

Guest Post: Facilitating participation of ‘P’ in Court of Protection proceedings

[We publish here by way of a guest post a case study written by Nicola Mackintosh QC (Hon) as to the facilitation of P in Court of Protection proceedings. The case study will form part of the second edition of the Court of Protection Handbook, coming soon. Nicola acted as P’s solicitor, instructed by the Official Solicitor as his litigation friend, in A County Council v (1) AB (2) JB (3) SB [2016] EWCOP 41, the case in which the measures set out below were explored].

In the body of [this book], we set out some of the ways in which practice needs to change within the Court of Protection to ensure that the court and representation process is looked at through P’s eyes, rather than just adding P as an afterthought. Whilst the COPR and accompanying Practice Directions may well need to be amended in due course to secure this goal, creative steps are already possible within the framework of the COPR as they stand. As a case study, we set out here those which were implemented to facilitate P’s participation in a fact-finding hearing listed to determine allegations of abuse at the hands of his parents.

P had expressed a wish to attend Court to come to the fact finding hearing to listen to what his parents and other witnesses were saying, as well as to ‘tell his story’ to the court. This was opposed by both his parents and the local authority, but the court ruled that he should attend. The court also ruled that, whilst P was “almost certainly not competent to give evidence [this is] is no reason not to seek with appropriate help to elicit ‘information’ from him via a skilled intermediary….using Rule 95 (e) the Court may admit the information but there is no guarantee that it would accept or act upon it….. the Court’s ability to have information provided by P is wide and flexible…”

In the light of the judgment the practical arrangements which had already been made were implemented. These steps show clearly how vital it is when securing and enhancing P’s participation that each and every detail of the arrangements is planned from P’s perspective and not simply limited to a meeting with the judge (important as that is). This involved the following:

P’s lawyers meeting with P and securing appropriate Speech and Language Therapy support to prepare for the hearing by exploring concepts such as the following:(b) ‘what is a judge, what will the judge be deciding, why is it important to you’?(d) ‘how can I tell my story’?
(c) ‘what will happen at the hearing, who will speak when, how long will it take etc.’?
(a)‘what is happening in court, what is a case, why is your case in court, what is the case about’?
Considering which court location would best meet the needs of the case, taking into account all physical facilities, travel time for P and others etc.
As the court’s video facilities did not allow for P to be in an adjacent room viewing the proceedings from a distance so as to minimise distress, an alternative facility was found nearby which could provide a video link to the court. Arrangements were made for this between the IT specialists of the court and the other facility, and for the video link to be tested in advance to ensure it was working. In the event this facility was not used as P remained in court throughout the proceedings.
(With consent) taking photographs of the judge, the courtroom and all the lawyers involved in the proceedings to explain to P the physical location and the identity of all involved in advance of the hearing.
Before the hearing arranging a visit by P to the courtroom when the court was not sitting to see the layout, and also to meet the court clerk who was to be allocated to the hearing days.
Deciding where it was best for P to sit in his wheelchair in the courtroom to listen to the proceedings, taking into account the position of other parties and ‘lines of sight’ with others.
Arranging for P to be supported by staff regarding personal care, and ensuring mobile hoists were provided for P in both locations for care.
Ensuring that there was enough physical space in the court complex so that P had a separate room just next to the courtroom, with a fan (P being a wheelchair user had reduced temperature control).

The first day of the hearing was listed as a Ground Rules Hearing, as provided for in the Advocates’ Gateway. On the first day, as planned, the judge met with P in a side room next to the courtroom. P’s solicitor was present, and P’s SALT also assisted by explaining to the judge that P was able to respond ‘yes, no, happy and sad’ through different Makaton signs. P showed the judge how he communicated each of these expressions, enabling the judge better to understand how to interpret P’s wishes and reactions.

Although the fact finding hearing was listed for 9 days, after the initial part of the first day of the hearing (P being present in court with his carers and intermediary) the parties set out their updated positions which then resulted in negotiations to see if a settlement could be reached without the need for the fact finding process. This lasted the first day and the terms of an order were agreed on the second day of the hearing. P was present during all discussions between lawyers and the court, and communicated his wish to continue to be involved and to listen to the proceedings. Between updates to the court he was permitted by the judge to remain in the courtroom with his support workers, watching a DVD. This reduced the need for him to be taken in and out of the courtroom, waiting for long periods in a small stuffy side room, and was invaluable. This could not have been arranged without the court’s co-operation and flexibility of the court staff.

Once agreement had been reached in principle between the parties as to the core issues in the case, it was considered vital for P’s wish to ‘tell his story’ to be facilitated. A very careful consideration of the issues raised, and the broad themes set out in the fact finding schedule was undertaken. Questions of P were drafted by P’s legal representatives with the assistance of P’s SALT and intermediary. As P’s communication was limited to responses such as ‘yes, no’ etc, it was necessary for leading questions to be posed however these were broken down into questions so that the leading element was minimised. Examples of questions included ‘Do you want to talk about when you were living at home?’, ‘How did you feel when you were living at home?’, When you were living at home did anyone do X to you?’, and if the answer was affirmative, ‘How did it make you feel?’ These questions were devised to ensure that P’s broad wishes were communicated to the court notwithstanding the agreement between the parties, so that P felt that he had been listened to by the parties and the judge, but avoiding detailed questioning on the fact finding schedule which eventually proved to be unnecessary.

The question and answer sessions were broken down into more than one session to allow P to rest and refocus. With agreement they were filmed on a mobile phone and then played to the judge in his chambers. They were then also played to the other parties. This flexibility avoided all the delays and organisational problems associated with using the court video facilities.

By the end of the second day, agreement had been reached in the form of a detailed order. The judge held a further short hearing and again explained the outcome to P, coming into the courtroom and sitting by P to confirm what was going to happen. P was repositioned in his wheelchair to be solely in the line of sight of the judge and not the other parties.

Although this case required considerable practical arrangements to be made, forward planning was vital in ensuring that all elements of P’s participation was effective in meeting the goal of P’s enhanced involvement in the proceedings. Each case will be as different as each P is different. The more that proceedings in the Court of Protection are attended by P, or P’s participation is secured by other creative means, the more the judiciary, Court staff, lawyers and all the parties will become accustomed to putting P at the centre of the process, and making appropriate arrangements. This is the beginning of a new era in the Court of Protection. This is only right given the role of the Court in making decisions which are of such fundamental importance to P’s life.

Transparency Pilot extended

The Pilot has been extended until August 2017. You can read the relevant PD and draft order here.

The order has been modified somewhat to make it clear that P’s initials should be used.

We will bring further news about this development as it emerges, including – we hope- more about the findings of the Pilot.

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.

Expert evidence and admissibility

In Kennedy v Cordia (Services) LLP [2016] UKSC 6, the Supreme Court had to consider a Scottish appeal arising out of a personal injury claim made by a home carer against her employer Cordia (Services) LLP following an injury to her wrist when she slipped on a snow covered footpath on the way to a home visit. An issue arose as to whether a witness who gave evidence about health and safety requirements, risk assessments and the availability of ‘add-ons’ (material that employers could provide to employees to add to their footwear to help prevent slips) was an expert witness.

The Supreme Court set out four general matters which fell to be addressed in the use of expert evidence in civil cases: (i) the admissibility of such evidence (ii) the responsibility of a party’s legal team to make sure the expert keeps to his or her role of giving the court useful information (iii) the court’s policing of the performance of the expert’s duties and (iv) economy in litigation.

The question of admissibility was held to turn on four considerations: (i) whether the proposed expert evidence would assist the court in its task; (ii) whether the witness has the necessary knowledge and experience; (iii) whether the witness is impartial in his or her presentation and assessment of the evidence; and (iv) whether there is a reliable body of knowledge or experience to underpin the expert’s evidence.

Despite being a Scottish case about employers’ liability, this appeal is of use more generally across the UK as a guide to expert witness evidence in civil proceedings (including, of course, COP cases and adult incapacity cases) and contains a helpful review of case law relevant to the four considerations on admissibility. One quote stands out as particularly apt when considering expert reports on capacity: “As with judicial or other opinions, what carries weight is the reasoning, not the conclusion” (Lord Prosser in Dingley v Chief Constable, Strathclyde Police 1998 SC 548, 604).

[A version of this note appeared in the April 2016 39 Essex Chambers Mental Capacity Law Newsletter]

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.

Transparency – it’s all go

The Transparency Pilot that we have covered previously is now finalised and will be starting on 29 January (NB, this means that the first pilot order can be made on 29 January providing for a hearing to be held in public subject to reporting restrictions, not that the first hearing will necessarily be on that date). The Practice Direction and the standard “pilot” order can be found here, and the – helpful – guidance note for the judiciary written by the Vice-President of the Court of Protection can be found here.

The Pilot will be running for 6 months. It is very important that practitioners understand that if they wish their case to proceed in private, it is necessary to apply at the earliest possible opportunity and before any pilot order is made – if they apply after the order has been made, then it will be necessary to give notice of any application to vary the order to the national media by using the Press Association’s Injunctions Alert service (formerly known as CoPyDirect).

As the Vice-President, Charles J, notes in his guidance note, the aim of the pilot is to effectively reverse the existing default position of private hearings. This means that there will have to be a good reason for not making an order that an attended hearing is to be in public including an anonymity order in terms of or based on the standard order.

When to find facts?

The President of the Court of Protection Sir James Munby has handed down judgment in an appeal against an order of HHJ Rogers, in the case of AG.

AG had a moderate learning disability and autistic spectrum disorder. She was removed from her home, where she held a tenancy, on 16 November 2011 in the context of a breakdown of care arrangements. AG was supported by a package of care and the removal was preceded by allegations and counter-allegations by DG, AG’s mother and the care staff. She was placed in residential care and an authorisation under schedule A1 MCA 2005 was granted. on 24 November an application to the Court of Protection was made.

On 2 November 2012 HHJ Rogers approved the local authority’s plan which was to move AG from residential into semi-supported accommodation and by the time of the final hearing on 3 September 2013 AG had moved into a supported placement. The final order followed a contested hearing with evidence from the independent social worker, DG and the allocated social worker.

The final order named the local authority as the decision-maker in respect of AG’s contact with her family, approved the proposed plan for AG’s supervised contact with DG to be increased and the level of supervision decreased, granted the local authority the power to enter and terminate a tenancy on AG’s behalf and made declarations as to AG’s capacity and best interests. It was in AG’s best interests to reside in her current accommodation or “such other accommodation as may be identified by the local authority”, to receive a care package in accordance with her assessed needs and to have contact with her family in accordance with her wishes and feelings and the local authority’s contact plan.

DG appealed on four grounds all of which failed. Perhaps the most significant for practitioners is the second ground- the complaint that the judge failed to make findings of fact.

DG’s position will resonate with many family members in Court of Protection proceedings where there is a background of allegations, which may or may not have been the subject of conclusions in safeguarding procedures, but which are never determined by the court.

DG argued that in the absence of a fact-finding procedure violated her rights under Article 8 ECHR. The President’s conclusions are set out below:

Further, it is said by Mr Dixon that, in failing to make findings of fact, Judge Rogers was wrong in law given: (i) the obligation under section 4(2) of the Mental Capacity Act 2005 to consider all the relevant circumstances; (ii) the presence in this case of what are said to be a multitude of factors recognised in law as justifying the need for a fact finding hearing; (iii) the fact that the issue of contact was, it is said, inextricably linked with the allegations of abuse; (iv) the inconsistency of the local authority’s stance – professing to have no need for a fact finding hearing yet relying upon the allegations; and (v) that the failure to make such findings amounted to a procedural violation of Article 8. DG, it is said, was entitled to a hearing at which she could seek to be exonerated.
In support of contention (ii), Mr Dixon placed reliance on the decisions of McFarlane J in A County Council v DP, RS, BS (By the Children’s Guardian) [2005] EWHC 1593 (Fam), [2005] 2 FLR 1031, para 24, and in Re W (Care Proceedings) [2008] EWHC 1118 (Fam), [2010] 1 FLR 1176, para 72, and the decision of Cobb J in LBX v TT (By the Official Solicitor as her Litigation Friend), MJ, WT, LT [2014] EWCOP 24, paras 49-50.

24. In the first of these cases, McFarlane J, as he then was, had to consider whether to direct a fact finding hearing in the context of care proceedings where by that stage no party was seeking any public law order. He identified the relevant authorities before summarising matters thus (para 24):

“The authorities make it plain that, amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:

(a) the interests of the child (which are relevant but not paramount);

(b) the time that the investigation will take;
(c) the likely cost to public funds;
(d) the evidential result;
(e) the necessity or otherwise of the investigation;
(f) the relevance of the potential result of the investigation

to the future care plans for the child;

(g) the impact of any fact finding process upon the other parties;

(h) the prospects of a fair trial on the issue;
(i) the justice of the case.”

Proper application of these principles in the circumstances of the present case – and those circumstances were carefully analysed by reference to each of the factors identified by McFarlane J – clearly pointed, Mr Dixon says, to the need for a fact finding hearing. The argument was further bolstered by what the same judge had said in Re W (para 72):“It is important that the planning in the future for these children … is based upon as correct a view of what happened to R as possible. It is not in the children’s interests, or in the interests of justice, or in the interests of the two adults, for the finding to be based on an erroneous basis. It is also in the interests of all of the children that are before this court for the mother’s role to be fully understood and investigated.”
Furthermore, as Mr Dixon pointed out, in LBX Cobb J accepted the submission (see paras 39, 49) that, suitably modified, these principles could be appropriately transported from the Family Division to the Court of Protection as providing a useful framework of issues to consider in relation to the necessity of fact finding in the jurisdiction of the Court of Protection.

In support of contention (v), Mr Dixon prays in aid McMichael v United Kingdom (1995) 20 EHRR 205, paras 87, 91, and R (B) v Crown Court at Stafford [2006] EWHC 1645 (Admin), [2007] 1 WLR 1524, para 23. In the latter case, May LJ said this:“… the court will have regard to the decision-making process to determine whether it has been conducted in a manner that, in all the circumstances, is fair and affords due respect to the interests protected by article 8. The process must be such as to secure that the views of those whose rights are in issue are made known and duly taken account of. What has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the person whose rights are in issue has been involved in the decision making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will be a failure to respect their family life and privacy and the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of article 8.”
In answer to this, the local authority and the Official Solicitor make common cause. Their arguments contain five essential strands.
First, as Ms Khalique points out, by reference to the decision of Wall J, as he then was, in Re S (Adult’s Lack of Capacity: Care and Residence) [2003] EWHC 1909 (Fam), [2003] 2 FLR 1235, para 13, it is important to remember that, unlike in the case of care proceedings in relation to a child, there is no requirement to establish ‘threshold’ in the case of proceedings in relation to an adult, whether the proceedings are brought in the High Court under the inherent jurisdiction or, as here, in the Court of Protection.
Wall J went on to point out (para 15) that the absence of any threshold criteria equivalent to those contained in section 31 of the Children Act 1989, “raises the question as to the extent to which (if at all) it is necessary, for the purposes of exercising the jurisdiction and deciding which course of action is in the best interests of S, to make findings of fact relating in particular to disputed historical issues.” His answer was as follows (paras 18, 21):

“18 … I agree that there must be good reason for local authority intervention in a case such as the present. Equally, if there are disputed issues of fact which go to the question of Mr S’s capacity and suitability to care for S, the court may need to resolve them if their resolution is necessary to the decision as to what is in S’s best interests. Findings of fact against Mr S on the two issues identified in para [16] would plainly reflect upon his capacity properly to care for S. But it does not follow, in my judgment, that the proceedings must be dismissed simply because the factual basis upon which the local authority instituted them turns out to be mistaken, or because it cannot be established on the balance of probabilities. What matters (assuming always that mental incapacity is made out) is which outcome will be in S’s best interests. There will plainly be cases which are very fact specific. There will be others in which the principal concern is the future, and the relative suitability of the plans which each party can put forward for both the short and long-term care of the mentally incapable adult. The instant case, in my judgment, is one of the cases in the latter category.

21 Whilst I acknowledge that in a relatively untried jurisdiction there are dangers in too relaxed an approach to historical issues, I am unable to accept the proposition that the approach to best interests is fettered in any way beyond that which applies to any judicial decision, namely that it has to be evidence based; that it excludes irrelevant material; and that it includes a consideration of all relevant material. In a field as complex as care for the mentally disabled, a high degree of pragmatism seems to me inevitable. But in each case it seems to me that the four essential building blocks are the same. First, is mental incapacity established? Secondly, is there a serious, justiciable issue relating to welfare? Thirdly, what is it? Fourthly, with the welfare of the incapable adult as the court’s paramount consideration, what are the balance sheet factors which must be drawn up to decide which course of action is in his or her best interests?”

31. I respectfully agree with that analysis.

Accordingly, it is submitted, the analyses of McFarlane J and Cobb J relied upon by Mr Dixon, have to be read in the context of the overarching principles articulated by Wall J, which, it is submitted, fully justified the approach adopted by Judge Rogers in the present case. I agree.
Secondly, as both Ms Lattimer and Ms Khalique emphasise, Judge Rogers was careful to spell out, and accurately, both in the order of 23 July 2012 and in the passage from his judgment of 2 November 2012 which I have set out in paragraph 19 above, the legal consequences of there having been no fact finding hearing. It is worth repeating, and emphasising, part of what he said:“I bear in mind, however, that those allegations … are strongly denied by DG and, applying a normal approach to the forensic fact finding enquiry, in the absence of the specific findings. I do not hold them in the background as it were by way of a suspicion lurking over DG.”Moreover, there is, they say, nothing whatever to show that this was not in fact the approach adopted by Judge Rogers, both in November 2012 and subsequently in September 2013. Again, I agree.

Thirdly, as Ms Lattimer correctly observes, the decision of Judge Rogers not to have a fact finding hearing must be viewed in context – a context in which, not least in the light of DG’s own stated position, matters had by July 2012 moved on significantly since November 2011. As Ms Khalique puts it, although the proceedings had been issued against the background of the safeguarding concerns arising out of the various allegations, matters had progressed and the court was faced with a different landscape. Judge Rogers correctly recognised that he was looking at the present position and looking to the future. Given how matters then stood, the degree of enquiry undertaken by Judge Rogers during the hearing in October / November 2012 was, says Ms Lattimer, entirely sufficient to inform the decisions in respect of future planning for AG that the court was tasked with making. A lengthy and costly finding of fact hearing would, she submits, have been entirely disproportionate. I agree.
Fourthly, there is, Ms Lattimer submits, and I agree, nothing to suggest that Mr M’s analyses and recommendations were adversely influenced by the allegations.
Finally, as both Ms Lattimer and Ms Khalique point out, DG never sought to challenge on appeal either the order of 23 July 2013 or the order of 2 November 2012. It is far too late to be taking the point now.
In my judgment, Judge Rogers was fully entitled to proceed as he did and for the reasons he gave. I accept Ms Lattimer and Ms Khalique’s submissions.
This ground of appeal fails.

The President rejected DG’s argument that by the time of the final hearing AG’s residence was a fait accompli. He further rejected the argument that the contact arrangements breached DG’s Article 8 rights, and commented that the judge’s measured findings on this issue were founded in the evidence before him and demonstrated that he had put aside the unresolved allegations against DG. The President found that DJ Rogers had been appropriately sensitive to balancing AG’s needs and wishes against her mother’s understandable wish to increase contact with her daughter.

He concluded with an important final observation

Ms Khalique submits, and I am inclined to agree, that the local authority acted unlawfully in removing AG from OG in November 2011 and placing her at HH without having first obtained judicial sanction. Local authorities must seek and obtain appropriate judicial authority before moving an incapacitous adult from their home into other accommodation. Local authorities do not themselves have power to do this.

Comment:

This is a clear judgment which builds on the comments made in LBX v TT. The President’s conclusions are not surprising in light of the authorities. His underlining of the distinction between COP cases and care cases- where there is a threshold- may lead to fewer cases in the COP sphere involving fact-finding hearings. It is hard however not to sympathise with the desire of those like DG to be able to clear their name in these cases.

The clear statement that local authorities “do not have the power” to remove an incapacitous adult from “their home into other accommodation” is important and may raise the question as to when somewhere becomes “home” for an adult lacking capacity.

Transparency Pilot Going Live!

This important pilot will start in early 2016. The majority of hearings will be heard in public, with steps taken to preserve the anonymity of P and P’s family.

The link below gives details as to the pilot with links to the new Practice Directions and precedent orders:

https://www.judiciary.gov.uk/announcements/court-of-protection-to-test-increased-access-for-public-and-media/

Practitioners will need to ensure their clients are aware of these changes. The criteria against which the success of this pilot will be assessed will be important as will the methods used to assess it. We will provide more information as soon as we are able.

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:

consider, test and decide between competing provisions for his care or treatment,
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.

Section 49 reports – the thorny issues

Summary

Somewhat surprisingly, the question of the responsibility of NHS bodies/local authorities to provide s.49 MCA reports at no cost to the parties has not been the subject of a reported judgment until now (although I am aware of both unreported judgments and observations expressed by judges in the course of hearings). In RS v LCC & Ors [2015] EWCOP 56, District Judge Bellamy has now stepped into the breach, although, as he noted, the difficult questions arising the provision of s.49 reports and their consequences for public bodies may ultimately have to be considered elsewhere.

The detailed facts of the case are not relevant. Suffice it to say to say that, during the course of a s.21A application, the court required a s.49 report to be provided by the mental health Trust responsible for P, addressing her capacity “as the gateway to the jurisdiction of the court.” The relevant NHS Trust declined to provide the report, both on the basis that it was impossible to provide it, and – more fundamentally – that it was inappropriate for the evidence sought to be provided by way of an order under s.49. The Trust’s objections were both specific to the nature of the evidence sought and more generally directed to the application of s.49 in respect of individuals for whom they already had a clinical responsibility. The Trust advanced 10 reasons to support their view that it was inappropriate for the required evidence to be obtained by way of Section 49. As District Judge Bellamy then addressed each of these reasons in turn, it is convenient to set out each of the objections together with his conclusions on each point in turn:

(1) The Trust has no clinical involvement or knowledge of P (other than the information contained in the applicant’s enclosed letter). P is not a patient under the Mental Health Services of the Trust.

Conclusion: While I note the argument there is no such distinction [i.e. between patients and non-patients] drawn within the powers given in Section 49 and the accompanying Rules or Practice Direction. In my view it would be wrong for the court to undertake such distinction either in the preparation of its orders generally or in this order in particular.

There appears to be a clear dispute on capacity the outcome of which may have a significant impact on P’s future care and welfare. Such a dispute should properly be resolved by way of a jointly instructed independent court expert. It is not appropriate to seek quasi expert evidence through Section 49.

Conclusion: The dispute as to capacity has arisen following a report from a consultant psychiatrist dealing with matters pertaining to a lasting power of attorney. There is an existing assessment by a consultant psychiatrist Dr Loosmore and a very experienced social worker. A question has therefore arisen in relation to RS as to the extent or otherwise of her capacity. It is a matter well suited for determination by Section 49 which is a proportionate response as opposed to an instruction to an independent expert. Such direction would have additional funding and cost consequences particularly in the instant case where three of the parties are either publicly funded or public bodies and the fourth is privately paying albeit acting in person. Furthermore a Section 49 Report would [or should at any rate] incur significantly less delay.

(3) A Section 49 Report is not a joint instruction and therefore can potentially leave open a dispute in the event that the evidence is not accepted by all parties. We understand that the first Respondent was not in agreement that Section 49 is appropriate.

Conclusion: A Section 49 Report is a direction of the court. If a letter of instruction cannot be agreed the court will deal with any such dispute. It was the court’s direction and not that of any specific party.

The Trust’s consultants are not court experts: they do not have the expertise in preparation of Medico Legal reports and should not be expected to do so, particularly where it is not in connection with a patient under their care.

Conclusion: The Rules and in particular the Practice Direction are clear as to the contents and format of a report. If that format is followed specific medico legal experience is not required. However, given the significant growth in the volume of work undertaken by the Court of Protection and in particular Section 21A or related challenges, it is no doubt a level of expertise that all consultant psychiatrists particularly dealing with the elderly will acquire if they have not already done so.

(5) We understand a report in the proceedings has been prepared on a private instruction by Dr Gonzalez (of the Trust). There is a potential conflict of interests in seeking a further report from a consultant of the Trust.

Conclusion: The court can see no potential conflict of interest in another consultant of the Trust preparing a report. Again the duty of the author of the report is fully set out in the Rules and Practice Direction.

(6) The request was a publicly funded body into proceedings of which it has no involvement.

Conclusion: The provisions of Section 49 are clear. There is a wide range in power to direct a report from an NHS body as the court considers appropriate. It is common for Section 49 Reports to be directed in this way.

(7) Complying with the request places a significant and disproportionate burden on limited NHS resources.

Conclusion: The court has sympathy with the effect of its order upon the Trust. However as is noted earlier no provision is made within Section 49 in relation to fees or expenses incurred by the author of the report (be it NHS body, Trust or otherwise). What the court will do is to carefully consider resources and listen to any argument from the Trust particularly in relation to the time for compliance and the scope of the work to be undertaken. That would appear to be both a reasonable and proportionate approach.

A consultant would need to cancel clinics to make time to prepare the report; putting vulnerable patients at risk.

Conclusion: While this is noted the answer to 7 would seem to cover this.

(9) There is no provision for costs of the report in order to enable the Trust to employ locum cover for the report author. The Trust is already under significant pressure to reduce its locum cover:

Conclusion: I have already dealt with this in 7 above.

(10) Even where locum cover can be sourced this can be detrimental to patients if they are not able to see their usual consultant with whom they have built a trusting professional relationship. Consistency of care is an important factor in mental health care and should be maintained wherever possible.

Conclusion: As stated above every effort will be made to accommodate the preparation and extent of the report so as to limit wherever possible the disruption in healthcare provided by a consultant to his patients.

District Judge Bellamy therefore declined to vary or alter the principle behind the original order directing the s.49 report, although he noted that: “it must be right that compliance with any order is subject to reasonable adjustment on application by the Trust in relation to the scope and extent of any report ordered and the time for compliance. However such applications must be made promptly and supported by evidence on behalf of the Trust or NHS body.”

Comment

On the very specific facts of this case, an immediate question comes to my mind as to why District Judge Bellamy did not seek a report (under s.49) from a Special Visitor. If the issue to be addressed was that of P’s capacity, and the court felt that it needed independent expertise in order, the obvious route to obtain that evidence is undoubtedly that provided for by the Special Visitor route. There may well have been reasons not apparent on the face of the judgment why such a course was not open to him, and, if so, then the course adopted would appear to have been both proportionate and reasonable. The conclusion that a public body cannot seek to recoup the costs of preparation of such a report is also undoubtedly correct.

The case, though, does raise a wider point about the importance of s.49 reports that may be at risk of being lost in the (understandable) concerns expressed by public bodies as to the time and resources that may be required where they are directed to provide such reports. The Court of Protection is a strange beast. It is regularly said to be inquisitorial in its jurisdiction: see, e.g. Re G [2014] EWCOP 1361 at paragraph 26. However, by comparison with the Family Division/Family Court, which is also said to discharge an inquisitorial jurisdiction, the Court is strangely underpowered – there is, in particular, no equivalent to a children’s guardian (whether a consequence is that the role of litigation friend in the COP is being distorted is something I am working on at present). If COP judges are to be put in a position where they are able properly to assess the questions of P’s capacity and best interests, it is crucial that they are, themselves, able to identify and call for such evidence as they see fit. Section 49 is therefore vital, both as regards the ability to call for reports from (Special) Visitors and for evidence from NHS bodies/local authorities. There is undoubtedly a price to be paid in consequence by such bodies, but, societally, it is a small one to pay for the proper determination of such cases.