Category: Uncategorized

s21A MCA can be used to bring SMT case

In Re Briggs [2016] EWCOP 48, Charles J  has held that it is possible for the question of whether it is a person’s best interests to continue to be given clinically assisted nutrition and hydration (‘CANH’) to be determined in proceedings brought under s.21A MCA 2005.  Charles J concluded that the question was an issue to be considered in determining the existence of the best interests condition, included in the definition of the best interests requirement, which is one of the requirements for the grant of a DOLS authorisation, and hence by the Court of Protection under s.21A MCA 2005.   Although an apparently technical question, a great deal turned upon his conclusion because it meant that the applicant – Lindsey Briggs – is eligible for non means tested legal aid funding for representation on the issue of whether it is in her husband’s best interests to be continue to be given CANH that is to be determined by the COP at a hearing presently fixed to take place at the end of November.

The case is also of some considerable interest for Charles J’s analysis of what precisely DOLS involves, and his confirmation (at paragraph 87) that they go beyond what is required to meet Article 5 and effectively include the best interests test that is applied whenever a decision has to be made pursuant to the MCA for a person who lacks capacity to make that decision himself.

We will have further analysis of this case in the December issue of the 39 Essex Chambers Mental Capacity Law Newsletter.

No power of arrest available in the Inherent Jurisdiction

Practitioners in the Court of Protection will be interested in the judgment of HHJ Bellamy, sitting as a deputy High Court Judge in the case of FD.  A former ward of court with a mild learning disability and an emotional disorder, FD was the subject on attaining the age of 18 of proceedings firstly in the Court of Protection and subsequently when an expert report concluded her to have capacity in the relevant domains under the Inherent Jurisdiction.  Injunctions were sought against individuals considered to pose a risk to FD, and the court was originally persuaded to add a power of arrest, on the basis that Munby J as he then was had imposed such a power in Re SA.   However the judge later became aware of an older authority, Re G (Wardship:  Power of Arrest [1983] 4 FLR 538, in which the Court of Appeal held that there is no power of arrest available in wardship proceedings.  After hearing argument HHJ Bellamy held that in Re SA Munby J was exercising the power under Part IV Family Law Act 1996 to attach a power of arrest to a non-molestation injunction.  This power is no longer available following amendments in 2007.  HHJ Bellamy therefore concluded that there is no jurisdiction under the Inherent Jurisdiction to attach a power of arrest to an injunction.

 

 

 

 

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.

Transparently pulling in different directions

In the sequel to the decision in C’s case, V v Associated Newspapers & Ors [2016] EWCOP 20, Charles J has considered afresh the Court of Protection’s approach to reporting restrictions orders, not least in light of the transparency pilot currently underway.

For present purposes, the facts can be very shortly summarised.   C’s case came before the Court of Protection for determination as to her capacity to consent to renal dialysis.   A reporting restrictions order was made at the outset of the proceedings (in standard terms for a serious medical treatment case) restricting reporting of information leading to the identification of C and her adult daughters.  The order was expressed to have effect during C’s lifetime.   After a hearing at which it was determined that C had the capacity, such that the Court of Protection had no jurisdiction, C died.  The case was the subject of considerable media interest, and both the tactics adopted by some reporters and the style of some reporting caused considerable distress to C’s family.   The adult daughters applied for a continuation of the reporting restriction order; by the time that the matter came finally to be determined by Charles J, the relevant media organisations did not contest that the order should be continued to the 18th birthday of C’s teenage daughter, although raised an issue as to whether the order could be made by Charles J as a Court of Protection judge (as opposed to a High Court judge)    Subsequent to the hearing, a further application was made that the order be extended to cover C’s inquest, which the media organisations did not resist, and which Charles J found to be justified on the particular facts of the case, especially given the prurient nature of the reporting that had taken place.

Much of Charles J’s judgment, therefore, consisted of determination of general principles for future guidance, rather than the resolution of a contest as to how they should apply upon the facts of the instant case.   In characteristic fashion, the judgment delves into matters in considerable detail, but for practitioners, the following conclusions he reached are key.

First: the Court of Protection has jurisdiction to make a post mortem reporting restrictions order (although in the instant case, and on a “belt and braces approach,” Charles J also made the order as a High Court judge to avoid any future jurisdictional arguments).   Further, reporting restrictions orders in serious medical treatment cases can extend beyond the death of the subject of those proceedings and there is no presumption or default position that such orders should end on P’s death.

Second: the Court of Protection should generally address the following questions:

  1. Are there good reasons for the hearing to be in public?
  2. If there are, should that public hearing be ordered with or without reporting restrictions? As part of that determination, how effective are any such reporting restrictions likely to be in protecting and promoting the relevant Article 8 rights and how restrictive are they likely to be of the relevant Article 10 rights having regard to the factors, propositions and public interests that underlie and promote those competing rights?
  3. In light of the conclusions as to these questions, and applying the ultimate balancing test required by Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593, should the hearing be in private or in public? If in private, what documents (with or without redactions and anonymisation) should be made public (and when and how this should be done)?   If in public, what reporting restrictions order / anonymity order should be made?

Third, the answer to the first question is almost always going to be “yes” because of the benefits of open justice and so almost always the Re S exercise will be engaged by addressing the second and third questions.

Fourth, a distinction can be made between (a) cases where pursuant to the default or general position under the relevant Rules or Practice Directions the court is allowing access (or unrestricted access) to the media and the public, and (b) cases in which it is imposing restrictions and so where the court is turning the tap on rather than off. However, Charles J emphasised that this distinction only reflects the strength of the reasoning underlying those Rules and Practice Direction that in many, perhaps most, cases the important safeguards secured by a public hearing can be secured without the press publishing or the public knowing the identities of the people involved.   The distinction therefore provides weight to the general arguments for anonymity to promote the administration of justice by the court generally and in the given case.  The distinction therefore does not undermine the general proposition that naming people has a valuable function of rendering news stories personal and therefore effective as journalism (see In re Guardian News and Media Ltd [2010] UKSC 1).  As Charles J reminded us, the CoP needs to remember it is not an editor.

Fifth, the weight to be given to the “naming proposition” and the conclusion as to what generally best promotes the administration of justice will vary from case to case, and may require specific consideration (and reasons) in specific cases.   Charles J gave some useful examples of how these considerations might apply in different cases:

  1. If the case involves a celebrity but otherwise is not out of the ordinary, the Court will be exercising a well-known decision making process, and the difficulty or impossibility of providing effective anonymisation may found a decision not to order a public hearing. The question for the trial judge will therefore be what (if any) document or judgment should be made public;
  2. If the case involves a celebrity but raises new or unusual points and so is out of the ordinary this may found a decision for a public hearing with no (or unusual) reporting restrictions;
  3. Where findings of serious mistreatment or malpractice are sought or when a member of a family wants (or has initiated) publicity that identifies P and family members issues will arise whether: (1) there should be a public hearing with no reporting restrictions (so the rival arguments and assertions are made public and linked to identified individuals); or (2) whether there should be a private hearing (with disclosure to relevant bodies or persons).

Charles J also used the opportunity to set out in a schedule to the judgment a comparison between the Transparency Pilot and the approach to reporting restrictions orders in serious medical treatment cases.   His analysis includes a useful – technical – explanation of the reasons why the two are different, a useful discussion of the purpose of notice, and also an invitation to the media and other interested persons to provide comments and contributions as to the practice relating to and the terms of Transparency Pilot Orders and PD13 Reporting Restriction Orders, not least so as to enable the ad hoc Rules Committee he chairs to consider whether  separate practice directions and different standard orders should continue in respect of serious medical treatment cases and/or whether the existing practice/template order in such cases should be changed.

Comment

In light of the sorry picture painted of the conduct of the relevant media organisations, it is hardly surprising that Charles J took the (very unusual) step of extending the RRO to cover C’s inquest.   Of wider significance and longer-term importance, however, are Charles J’s observations as to the general approach to be taken and questions to be asked as the CoP continues to look – via the Transparency Pilot – for the best approach to enable it secure the correct balance between Articles 8 and 10 ECHR and thereby correctly promote the powerful (and often competing) public interests they engage and reflect.

[A version of this note appeared in the May 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.

 

Court of Protection Handbook Second Edition – your chance to make a difference

We are setting the wheels in motion to produce a second edition of the Court of Protection Handbook by the end of the year.   We think we know what we need to cover – not least all the exciting developments such as the Case Management Pilot – but we would very much like to hear from you with suggestions of what we need to make sure we add (or conversely, what we can lose).   All answers on an electronic postcard please to courtofprotectionhandbook@gmail.com.

Case Management Pilot Draft published

The long-awaited case management pilot has now been published in draft form for comment and consideration before it goes live in June of this year. There will be more analysis of it and of its implications in next month’s Mental Capacity Law Newsletter, but and very brief terms of pilot envisages very clear pathways for health and welfare cases, property and affairs cases, and mixed cases.

In all cases, the pilot Case Management Direction will place an obligation on applicants to provide improved analysis of the issues at the start of a case, allowing for more robust case management decisions to be taken at the outset and all issues to be identified at the earliest opportunity in proceedings. It will also seek to encourage early resolution of cases, to reduce the number and length of hearings required in contested cases and to promote judicial continuity. The pilot is expected to run for up to 12 months.

Separately, and also to start in June, a pilot has been published to tighten up the  relating to s.49 reports. The pilot aims to ensure that such reports from public bodies are attained in a proportionate, targeted and, above all, useful fashion.  

Transparency guidance on anonymisation updated

Following feedback that the procedure being adopted to ensure that parties were anonymised was perhaps a little too over-zealous, new guidance has been issued.   If further issues such as these are identified, the guidance accompanying the pilot will no doubt be subject to further amendment in due course as all those involved continue to find their feet.

[Update 25 February, this guidance is going to be further updated in light of an ambiguity brought to the attention of the relevant authorities so we have removed the link for the time being]