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Section 21A applications and legal aid

We reproduce below a version of the case comment on the case of Briggs v Briggs [2016] EWCOP 48 which appeared in the December 2016 39 Essex Chambers Mental Capacity Law Newsletter.

Summary

In this case, Charles J had to decide whether it was 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. The question arose because the applicant – the wife of, and RPR for a man in a minimally conscious state – brought an application under s.21A MCA 2005 challenging the DOLS authorisation in place at the hospital he was in. She did so on the express basis that doing so would allow her to claim legal aid on a non-means-tested basis so as to be able to have legal representation to be able to argue her case that continuation of CANH was not in his best interests. Her position was opposed by the Official Solicitor, the Legal Aid Agency and the Secretary of State (as the Ministry of Justice and Department of Health collectively) on the basis that:

1. In the Official Solicitor’s case, non means tested funding is not available to present arguments relating to the care, support or treatment of a P as they related to conditions of detention, and were therefore outside the scope of s.21A (Article 5 not relating to conditions of detention);

2. On the Secretary of State’s case, such funding was only available where the issues related to “physical liberty.”

Charles J, in an extensive and wide-ranging judgment, came to the very clear conclusion that both of these arguments were wrong, and that it was entirely proper for the Court of Protection on a s.21A application to consider the question of whether CANH was in Mr Briggs’ best interests as part and parcel of the discharge of its functions under s.21A MCA 2005. The following conclusions from his judgment are of particular relevance or importance:

1. The clear conclusion that a DOLS authorisation does not authorise the care plan for, or medical treatment of P, or protect those who are providing them from liability for so doing. It is limited to authorising the deprivation of liberty that those acts create (paragraph 48);

2. The determination of whether the deprivation of liberty is in P’s best interests, necessary and proportionate “has to involve consideration of P’s circumstances in a hospital or care home and so of the care, support and treatment proposed or provided to meet P’s needs in them even if it is limited to a consideration of their effect” (paragraph 50), and hence “the determination of the questions posed by the definition of the best interests condition must involve a consideration of: i) the impact of possible and available alternatives and issues of degree, and ii) as far as reasonably ascertainable P’s past and present wishes and feelings, beliefs and values and factors that P would be likely to consider if he were able to do so” (paragraph 52);

3. That generally the COP should take control of all aspects of the case when proceedings are brought under s.21A MCA (even if an authorisation should remain in place to allow non-means-tested legal aid to continue to be justified: paragraphs 29-34). This was particularly the case in the proceedings before him given the nature of the CANH best interests issue (paragraph 70), in which the determinative or central issue was whether CANH is in Mr Briggs’ best interests and the conclusion on it should found an order under s. 16(2) MCA 2005. The determination of that issue by the COP would found and so was directly relevant to its consideration of its exercise of its functions under s.21A (which it can exercise whether or not proceedings have been issued under s.21A) (paragraph 76);

4. Whatever the precise requirements of Article 5 ECHR, a literal construction of DOLS shows that they went beyond that 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 (paragraph 87). This showed that:

91. […] in a case such as this when the purpose of the placement in the hospital is obviously for care and treatment the “all or nothing approach” advanced effectively on the basis that P will continue to be deprived of his liberty whatever regime of treatment is put in place (and so whether or not CANH is in Mr Briggs’ best interests) runs contrary to a best interests consideration of the circumstances P (Mr Briggs) is in on the ground as it seeks to exclude a consideration of P’s views etc. under s. 4(6) and whether the conditions can be improved or made less restrictive under s. 1(6) of the MCA.

Alternatively, if it is said that the views of P on (life sustaining or other) treatment can be taken into account in considering whether he should be deprived of his liberty (or his personal liberty should be removed) this takes one back to the central issue in this case namely the impact of Mr Briggs’ views etc. under s. 4(6) on whether treatment should be withheld with the consequence that he should be allowed to die. It would be very artificial and in my view callous to say that this was irrelevant to the issues relating to his physical liberty, or the termination of the exiting DOLS authorisation, because during the period after the cessation of the CANH leading up to his death his physical liberty would not change even if (as is at least likely) he moves from the hospital to a hospice.

5. The acknowledgement that the best interests assessor will not be able to carry out the intense scrutiny that the COP can and would have practical difficulties in challenging the medical decisions that found protection from liability under s. 5 MCA. Charles J noted, however, that the assessor could reach his best interests assessment on the basis of the views of the treating team leaving it to P or his RPR to challenge the authorisation or put a condition on the authorisation or limit its duration to enable any dispute to be put before the COP (paragraph 94);

6. Further, even if the best interests requirement under DOLS was limited in the way that the Official Solicitor and the Secretary of State argued, the best interests test as then applied by the Court of Protection in determining whether CANH should be continued was related to matters arising under s.21A(2)(a)-(d), because (1) it was related to the best interests condition of the best interests requirement; (2) and provided the answers or information relevant to the answers to the questions of: (a) the period of the standard authorisation (e.g. until a move to a hospice or a rehabilitation unit); (b) the purpose of the standard authorisation, namely whether the treatment should or should not include CANH; and (c) conditions of the standard authorisation (e.g. about preparations to be made for a move). These answers informed – Charles J held – what the COP can order under s.21A(3) by way of variation or termination of the standard authority itself or by direction to the supervisory body (paragraphs 96-99). Charles J noted in this regard that:

This view of the width of what the COP can properly do under s. 21A is confirmed when other types of case are considered. For example, when P is in a care home the best interests issues can encompass changes in the care plan (incorporated into or on which the standard authorisation is based) involving less restrictive options, the giving of medication covertly or in particular circumstances, the use of restraint, more visits to the community and contact. Even if they are outside the factors to be considered under the qualifying requirements (and so the best interests condition) they:

i) inform and so relate to the matters referred to in s. 21A (2)(b) to (d), and

ii) inform the order or orders to be made under s.21A(3), (6) and (7) in respect of the DOLS authorisation that has been granted (and if necessary extended by the COP applying the approach in Re UF).

7. Finally, Charles J noted that, on a purposive intention of the legislation, Parliament would not have intended the COP to be concerned with the distinctions advanced in this case by the Secretary of State, the LAA and the Official Solicitor:

108. Absent the issue relating to the availability of non means test legal aid, which it is common ground is irrelevant, these distinctions are not agreed between them, give rise to fine, difficult and potentially emotionally draining issues (e.g. whether a decision that leaves out of account the views etc. of P on whether he should be detained at place A or place B relates to his personal liberty or a deprivation of his liberty within Article 5 having regard to its subjective element) and are irrelevant because the COP can deal with all issues in this case in an application brought in reliance on s. 21A or an application brought seeking orders under ss. 15 and 16 of the MCA. […]

Charles J therefore held that Mrs Briggs could properly raise the issue of whether CANH should be continued as part of her s.21A challenge as RPR for her husband. We address the substantive decision in relation to her husband’s treatment in the separate case comment below.

Comment

On one view, it would appear odd that a s.21A application could be used as a vehicle to challenge decisions about CANH, and it is undoubtedly the case that Mrs Briggs was “lucky” that there happened to be in place a DOLS authorisation at the hospital to allow her to do so (note that Charles J expressly did not decide whether or not in fact Mr Briggs was deprived of his liberty, as this was assumed to be the case for purposes of the preliminary issue decided here).

However, once one steps away from the specific place that CANH has as a type of serious medical treatment (‘SMT’) and the mindset of SMT cases, Charles J’s logic would seem impeccable. DOLS may have been designed to plug the Bournewood gap, and to that end could have been limited solely to a determining whether or not the deprivation of liberty was necessary and proportionate (the test for Article 5 purposes). However, the scheme undoubtedly went further to include a specific best interests requirement which, in turn, requires the application of the best interests test under s.4 MCA 2005. Once the best interests genie was let out of the bottle, that must carry with it the connotation that those concerned with considering the requirement (and the court on a s.21A application) must have a wide view of the nature and purpose of the authorisation and – in turn – asking whether the care and treatment which gives rise to the need for it is, in fact, in the person’s best interests.

It is, perhaps, not surprising – given the implications for legal aid in s.21A applications – that the Secretary of State/Legal Aid Agency are seeking permission to appeal to put the best interests genie back in its bottle.

Court of Protection Handbook Second Edition now out!

We are very pleased to announce that the second edition of the Court of Protection Handbook is now available from the LAG bookstore (as paperbook and eBook). The new edition has been rewritten to take account of the amendments made by the Court of Protection (Amendment) Rules 2015, the Case Management Pilot that started in September 2016 and the Transparency Pilot that started in January 2016, along with coverage of the Re X procedure for judicial authorisation of deprivation of liberty. It also includes new practical guidance for improving the participation of P.

The website has also been thoroughly updated to include a whole new suite of – free – downloadable precedent orders (including those used by the judiciary in the Case Management Pilot). It also, as before, serves an updater for the book. As ever, feedback is very welcome, to alex.ruckkeene@39essex.com.

Objections, DOLS and the Court of Protection

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DOLS reform delayed

The Law Commission has announced today that the next stage in the reform of DOLS – namely the publication of the Commission’s final report and draft legislation- will now be in March 2017, rather than before the end of the year.

In an email to stakeholders, Tim Spencer-Lane, who leads the project wrote:

“The reason for the delay is the complexity of the task of drafting legislation on such an important issue. It is vitally important to get the law right here. Badly drafted, over-complicated law is a big part of the problem with the current DoLS, and we do not want to fall into the same trap again.

We are very aware that the project deadline was brought forward at the request of the Department of Health and for a good reason: there is an urgent need for the system to be improved. We know too that many stakeholders are waiting for our report and draft Bill and will be disappointed with any delay. For this we apologise.

But we are convinced that it is far more important to deliver a fully completed draft Bill that can deliver effective safeguards to those being deprived of liberty. We are also confident that our new publication date will not delay the introduction of legislation into Parliament, should the Government wish to do so. It will be for Government to decide how to take forward the recommendations and draft Bill.”

We will continue to update readers as soon as there is further news.

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 18^th 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:

Are there good reasons for the hearing to be in public?
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?
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:

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;
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;
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.