Supreme Court news

The Supreme Court has granted permission to the Official Solicitor to appeal against the decision of the Court of Appeal in Re D [2017] EWCA Civ 1695.  The hearing has been expedited and listed for 3 and 4 October.  Anyone who wants to understand how the MCA 2005 is intended to interact with the Children Act 1989 will be well advised to keep a careful eye out for the judgment in due course.

The Supreme Court will hear the appeal in MM (concerning conditional discharge and confinement) on 26 July.  It has also very recently been confirmed will hear the appeal in PJ (concerning the jurisdiction of the Mental Health Tribunal over human rights issues, as well as CTOs and deprivation of liberty) on 22 October.

Advertisements

LPS to go to Parliament

The Mental Capacity (Amendment) Bill has just been introduced to the House of Commons.

The press release explains that

“The reforms seek to:

  • introduce a simpler process that involves families more and gives swifter access to assessments
  • be less burdensome on people, carers, families and local authorities
  • allow the NHS, rather than local authorities, to make decisions about their patients, allowing a more efficient and clearly accountable process
  • consider restrictions of people’s liberties as part of their overall care package
  • get rid of repeat assessments and authorisations when someone moves between a care home, hospital and ambulance as part of their treatment

The reforms will also save local authorities an estimated £200 million or more a year.”

The progress of the Bill will be watched by many.

Regional Applications Scheme Launched.

We have been asked to publicise an important change to the way in which health and welfare applications and section 21A applications are issued.

As the regionalisation project moves ahead, these applications will be issued from regional centres, starting with the South West (Bristol) Regional Hub, as from 30 April 2018.

The other regional centres will begin issuing their own applications from 25 June 2018.

This does not apply to serious medical treatment cases or to property and affairs cases.

Practitioners may have received a letter from HMCTS with essential information about how the new process will work, including how issue fees should be paid.  You can read the letter here.

HMCTS explain that they will try to attend user group meetings in the regional hubs before the pilot starts in that reason.

 

Accredited Legal Representatives Scheme Launched

We are very pleased to confirm that on 2 April 2018 HMCTS introduced the process of appointing accredited legal representatives (ALRs) of the court’s own motion, in appropriate cases.  This means that the “menu” of options for representing P, as set out in COPR r1.2 is now complete.

We hope that the court will take advantage of the cadre of ALRs who have gone through what appears to be the testing process of securing appointment to the Law Society’s Mental Capacity Accreditation Scheme.

We’re aware that some practitioners have expressed concern that, in circumstances where P has been referred by his or her RPR to a solicitor who has secured legal aid, the court may then appoint a different solicitor as ALR.  There are understandable anxieties about lack of continuity for P and duplication of work.

We suggest that there is a pragmatic solution.  A solicitor who has been working with P, perhaps after a referral by an RPR, and who then issues a section 21A challenge could file a statement alongside Form DLA which sets out the solicitor’s involvement with P so that the court is aware of the issue of continuity when deciding which of the rule 1.2 options to select.  An accredited solicitor who wishes to be appointed as such could also file a COP9 requesting appointment.

We are very interested to hear about the experience of practitioners as the new scheme gathers pace.

Costs and test cases

In a short judgment Mr Justice Baker declined to award the Official Solicitor his costs after a CCG withdrew applications in relation to a series of test cases.  You can read the judgment here.

The case concerned applications in relation to the living arrangements of incapacitated adults for whom the CCG had responsibility.  All were living in their own home and the CCG sought clarification as to whether such individuals satisfied the “acid test”.  The CCG also questioned whether the responsibility for any deprivation of liberty was imputable to the state solely by virtue of the fact that it provided NHS care for P.  If either the acid test was not satisfied or the arrangements were not imputable to the state, of course, the adults concerned would not be deprived of their liberty for the purpose of Article 5 and thus the CCG would not be required to make an application to court for a welfare order under section 16 MCA 2005.

The Official Solicitor was invited to act for the four adults originally involved in the test case.  Two were not eligible for legal aid and it was not considered reasonable to utilise P’s funds for this purpose.  Subsequently one of these cases could proceed and the CCG applied to withdraw its application because the practical impact would be very limited; the CCG had reviewed its position in light of the OS’ analysis and the CCG considered that both the relevance and the strength of the application had been limited by the Law Commission’s proposed reforms.  The Official Solicitor sought his costs, submitting that in reality the application was akin to a civil claim where he had succeeded.

Baker J refused the application.  He gave no weight to the argument that the costs would be borne by the public purse in the form of the Legal Aid Agency stating that a legally aided party should be treated in exactly the same way as one without a legal aid certificate.  He rejected the application for costs in these terms:

 

(1) I do not accept the suggestion that this was not a typical welfare case. The application concerned a series of welfare cases in which an important preliminary issue arose on a point of law.(2) As is widely recognised, the law concerning deprivation of liberty under the Mental Capacity Act is in a state of some uncertainty. That is why it has been the subject of a review by the Law Commission whose final report contains recommendations for substantial reform. The government has now accepted the report and the majority of its recommendations, and acknowledged that the current Deprivation of Liberty Safeguards should be replaced “as a matter of pressing urgency” (see government response 14 March 2018).

(3) It was in my judgment understandable that the applicant sought guidance on the issue of the impact of the “acid test” on cases involving incapacitated adults living at home, given the large number of individuals in those circumstances for whom it is responsible. In the words of rule 159(2)(b), it was reasonable for the applicant to raise and pursue this issue.

(4) Given the constraints under which all public bodies operate, the applicant was entirely justified in keeping under review the question of whether to pursue the case. Indeed, it would have been remiss if it had not done so. The fact that the applicant decided to abort the proceedings was a reasonable decision. To use the words in rule 159(2)(b) again, it was reasonable for the applicant to decide not to contest the issue in the light of developments in the litigation as described above.

(5) Although it is arguable that the difficulties in the individual cases could have been anticipated, I do not think that the applicant’s failure to do so at an earlier stage could be described as litigation conduct of the sort to justify departing from the general rule.

(6) Although my comments in G v E (Costs) above were made in a different context, they do have some relevance here. Professionals working in this field often face difficult judgements and decisions. The applicant made the decision to ask the court to consider the preliminary issue which, as Mr Ruck Keene fairly conceded, involved propositions of general and considerable importance. Subsequently, however, in the light of developments within the cases, the applicant decided not to pursue the issue. In all the circumstances, I do not consider that its decision-making and overall conduct justifies a departure from the general rule as to costs.

Comment:  This is a useful application of the principles concerning costs to an unusual situation namely where an important preliminary issue arises in a “typical welfare case”.  Key to this was the judge’s assessment that it was reasonable for the CCG to seek guidance about the applicability of Article 5 given the significant financial impact in a time of financial constraints had the CCG been successful; but that it was also reasonable to keep the need for the proceedings under review and to seek to withdraw them when the issue, although fascinating, had become academic.

Deckchairs on the legal Titanic? The Re X saga continues

In Re KT & Ors [2018] EWCOP 1, Charles J has returned – again – to the vexed question of how Re X applications (now, strictly, COPDOL11 applications) can proceed where there is no-one can properly play the part of Rule 3A (now Rule 1.2(5)) representative.  Charles J considered four test cases of the 300 or so that have now been stayed in accordance with his decision in Re JM [2016] EWCOP 15, there being no family member or friend is available for appointment as P’s Rule 1.2(5) representative.

Background

In early 2017, the Government Legal Department had written to local authority applicants in stayed cases to indicate that (1) the most appropriate course of action was for the local authority to identify a professional advocate; but (2) where one was not available, the local authority should liaise to take forward the process of commissioning a Court of Protection General Visitor to complete a report under s.49 MCA 2005. The GLD letters indicated that Ministers had agreed to provide funding to HMCTS to enable greater use of visitors by the COP. On the basis of these letters, two applicant local authorities sought to lift stays in four cases, which were listed before Charles J as test cases.

Charles J, it is fair to say, was unimpressed by the GLD letters, noting that they were devoid both of detail as to extra funding, and also how and why it was now said that a professional advocate had or had always had been a practically available option in a significant number of cases. Following directions made in the test cases, the Secretary of State filed submissions which asserted that local authority applicants owed a duty under s.6 Human Rights Act 1998 “to facilitate the speedy resolution of the application by (for example) ensuring that a professional advocate is appointed to represent P’s interests so far as necessary“. It was asserted that this duty: “falls into the same category as the DOLS duties which were considered in Liverpool City Council,” the unsuccessful judicial review brought by local authorities to seek to compel greater funding to discharge their DOLS obligations. As Charles J noted that, this was a radical departure from the position that had previously been taken by the Secretary of State in JM, where it had been agreed that local authority and other applicants do not owe a statutory duty to provide representation for P in the COP.

Whose obligation to provide representation for P?

Charles J expressed the preliminary view that the Secretary of State’s argument as to the obligation of local authorities under the HRA was wrong, running counter to the decision on the obligations of a local authority in Re A and C [2010] EWHC 978 (in particular at paragraph 96) and its application in Staffordshire County Council v SRK and others [2016] EWCOP 27 and [2016] EWCA Civ 1317.  However, even if they did owe such a duty, Charles J held that this did not assist the Secretary of State because the central, statutory, obligation lay with the Secretary of State for Justice to ensure that the COP, as a public authority, acts lawfully and so can apply a Convention compliant and fair procedure.

Visitor as Convention-compliant procedure?

Charles J agreed with the agreed position of both the applicant local authorities and the Secretary of State that the appointment of a Visitor would provide a fair and Convention compliant procedure because it would provide the essence of P’s Article 5 procedural rights, which had been identified in Re NRA & Others [2015] EWCOP 59 as requiring an independent person to: (1) elicit P’s wishes and feelings and make them and the matters mentioned in s.4(6) MCA 2005 known to the Court without causing P any or any unnecessary distress; (2) critically examine 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; (3) keep the implementation of the care package under review and raise points relating to it and changes in P’s behaviour or health. Charles J set out draft directions which could be made in cases where a Visitor was proposed.  Charles J acknowledged that there were both advantages and disadvantages to the appointment of a Visitor over a family member or friend, the advantages being the independence and expertise of the visitor, the disadvantages being the absence of a more regular review on the ground by someone who knows P and wants to promote their best interests.

Having conducted a detailed review of the (depressing) evidence before him, Charles J did not consider that the offer to fund Visitors by the Secretary of State was likely to offer anything but a short-term or a very partial solution to the issue. However, he held that this should not stop it being used for so long as it was available in practice.

Order of preference

In light of the matters set out above, Charles J had to resolve an issue as to whether, where no family member/friend is available to as Rule 1.2(5) representative, the second choice should be a Visitor (the local authorities’ position) or a professional representative (the Secretary of State’s position). In reality, as he noted, the dispute was based upon the budgetary battle between local and central government. In the abstract, Charles J considered, the appointment of a professional who could act independently as a Rule 1.2(5) representative and carry out regular reviews of P’s placement and care package on the ground would in most cases be likely to have advantages over the appointment of a Visitor because it would provide a better basis of and for review and equivalent expertise and independence to that provided by a Visitor.

However, given that there was no evidence that professional representatives were actually practically available in most cases, Charles J held that if he had to make a choice, he would choose a Visitor. He recorded the sensible acceptance by the Secretary of State that generally the COP can and should accept an assertion from an applicant authority that a professional Rule representative is not available for appointment at face value.

Joinder of the Crown/further stays

Charles J has no intention of letting the Government off the hook, noting at para 91 that:

In cases where a visitor is appointed (or some other available procedure is adopted to enable an application or review to proceed) there is no need to, or purpose for joining, or continuing the joinder of, the Crown. But, as soon as any such practically available process is no longer available I consider that, for the reasons given in JM and earlier in this judgment the COP should join the Crown to and stay such applications and reviews.

Way ahead

Charles J suggested that the Secretary of State, the Public Guardian and the COP (through the Senior Judge) try to agree a process by which the stays are lifted in the approximately 330 stayed cases on the same basis as in these cases. He indicated that in cases in which local authorities (or, presumably, other applicants) have not sought to lift the stay, an appropriate course would be for the Secretary of State to apply to lift the stay in a manner that ensures that a visitor will be available for appointment in each case. However, he left the ultimate decision as to how best to clear the backlog to the triumvirate set out above.

Comment

The decision in Cheshire West has caused huge resource implications. The Law Commission has estimated the cost of full compliance at £2.155 billion per year. One of the local authorities before the court, Wolverhampton, had brought 24 applications over the past 3 years, and estimated that that three times the present number should have been brought, the numbers being likely to increase with service users moving to supported living. The Law Commission had estimated that around 53,000 people are deprived of liberty outside hospitals and care homes, and calculated that this would cost local authorities and the NHS £609.5 million per year to authorise by obtaining welfare orders from the COP.   Only a very small fraction of these applications are being made, although between January and March 2017, there were 969 applications relating to deprivation of liberty, up 43% on the equivalent quarter in 2016 (678). Of these, 600 were Re X applications.

In the circumstances, it is hardly surprising that Charles J considered that funding to provide an additional 200 Visitor reports a year hardly scratched the surface of the problem. As he recognised, his analysis of the position represents, in essence, the re-arranging of deckchairs on the legal Titanic. LPS – and/or or a radical rethinking of the law relating to deprivation of liberty – cannot come soon enough.