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.

 

 

Exceptional Case Funding – Good news (for the time being)

In IS v Director of Legal Aid Casework and the Lord Chancellor [2015] EWHC 1965 (Admin), Collins J has roundly condemned the Exceptional Case Funding (ECF) scheme established under s.10(3) of the Legal Aid Sentencing and Punishment of Offenders Act 2012 as too restrictive and not complying with the requirements of Articles 6 or 8 of the ECHR.

The claim was ultimately framed as a test case, pursued by the Official Solicitor (very properly discharging his wider functions), on the basis of his concern that the scheme failed properly to deal with claims made by those who lack capacity, whether as children or as adults, particularly where the Official Solicitor has to act as litigation friend because no other person is available. That was the position in this claim.

The judgment of Collins J is very lengthy, but for mental capacity addicts, the most significant passages are those vividly describing the difficulties arising where individuals lack the material capacity:

“73. The OS has particular concerns for patients, namely persons lacking mental capacity, and children who cannot engage in litigation without a litigation friend. He is a litigation friend of last resort in the sense that he will act only where no other litigation friend can be found. He will not, save in rare cases, himself conduct litigation and needs to have external funding. His concerns not only relate to cases in which he has acted as a litigation friend, but more generally that the scheme fails to meet the needs of those who lack capacity. It must be obvious that the difficulties in dealing with the prescribed forms and in making applications apply with greater force where children or adults who lack capacity are concerned. The response given is that a litigation friend can conduct the litigation and can apply for ECF. Equally, it is said that a litigation friend can conduct a case and so can be expected to be treated in the same way as would a litigant who had capacity. The evidence from Mr Bryant, the head of ECF determinations in the LAA, is that the ECF team does not expect litigation friends to conduct the litigation as advocates, but they step into the protected person’s shoes. The same point is made by the policy manager in the Ministry of Justice’s legal aid policy team, Mr Holmes, in his statement.

74. There is a powerful disincentive for a litigation friend to act since he or she undertakes not only to pay the protected persons costs but any costs that the court may order to be paid by the protected person. [note, the relevant forms in the Court of Protection do not make this express, but it is must be implicit as a matter of substantive law]. While the litigation friend will expect to recover from the protected person such costs, that is unlikely to be realistic when the protected person lacks means and so could be financially eligible for legal aid. Equally, a litigation friend is under a duty to act always in the protected person’s best interests and those may not be in accordance with the protected person’s views, albeit those views must always be put to the court. Thus in many cases it would be inappropriate for a family member (for example a parent of a child) to act as a litigation friend since there may be a need for objectivity which could not be met. Further, McKenzie friends cannot be used. It follows that in many cases involving impecunious children or adults who lack capacity there will be real difficulties in finding a litigation friend prepared to act having regard in particular to liability for costs. Thus the OS may have to act if approached. He will not normally be able to act for an impecunious individual, unless, absent a CFA or a costs undertaking from the opposing party, there is legal aid.

75. Problems have arisen in that the LAA has in a number of cases required the lack of capacity for an adult to be established. It is said that evidence is not now requested and cases in which that request was made occurred in the early days and are not to be repeated. Nevertheless, there have been instances when information perhaps in the form of existing reports has been requested. It seems somewhat improbable that an individual would falsely assert a lack of capacity but no doubt that could occur. I was told that if the OS were acting no issue would be raised about capacity. However, it will often be necessary to have some medical evidence and that must be paid for. Furthermore, solicitors must be available to act. The defendants say that the OS’s concerns that protected persons cannot be expected to make applications themselves is based on the incorrect assumption that solicitors are unwilling to make such applications. The evidence before me as I have said shows that it is no assumption but entirely correct.

In summary, Collins J held that:

“105. As will become apparent, I think that there must be changes to the scheme. The ECF application forms are far too complex for applicants in person. Separate forms should be provided. Indeed, overall the test set out in R(G) can be set out in the form and applicants or providers can then be required to give full details of the need for legal assistance by producing all existing material relevant to the application. As I indicated, what is put on the website can surely be put on a form. Consideration must be given to provision of Legal Help to enable providers to do work to see whether a client has a case which should be granted legal assistance because it qualifies within s.10 of the Act. No doubt the LAA will be entitled to decide whether any such application is reasonable since a provider must satisfy himself that there is a possible need for legal assistance on the basis of preliminary information given by the client and any relevant documents provided. Legal Help does not require a prospect of success test.

106. The rigidity of the merits test and the manner in which it is applied are in my judgment wholly unsatisfactory. They are not reasonable.

107. As will be clear, I am satisfied that the scheme as operated is not providing the safety net promised by Ministers and is not in accordance with s.10 in that it does not ensure that applicants’ human rights are not breached or are not likely to be breached. There is a further defect in the failure to have any right of appeal to a judicial body where an individual who lacks capacity will otherwise be unable to access a court or tribunal.”

We understand that Collins J granted permission to appeal, an avenue that the LAA/Lord Chancellor will no doubt be pursuing with vigour.   Hopefully the line can be held before the Court of Appeal.

Re X continued

A series of cases applying for “judicial detention” listed before District Judge Marin have now been referred to the Vice President in what the judge referred to as a “complete impasse” because of the unavailability of litigation friends.

The judge noted an increase of such cases following the Court of Appeal’s decision in Re X.  Some were plainly substantive welfare disputes which would proceed accordingly.  However others were cases where the only issue was the need to authorise a deprivation of liberty.

The Official Solicitor had written to the court explaining that it would be impossible for him to accept an invitation to act in the anticipated number of cases.

DJ Marin considered whether a Rule 3A representative ( as opposed to a legal representative) could be a suitable means of allowing P’s participation, given that the Court of Appeal’s obiter dicta in Re X strongly suggests P should be a party.

He has asked the President to consider a number of questions, summarised here:

– whether P must be a party in all deprivation of liberty cases

-whether family members with an interest in the case can be litigation friends

– whether a Rule 3A representative was sufficient in such cases and

– whether cases raising similar issues should be stayed pending determination of the above issues.

You can read the judgment here.    

We will keep you up to date with further developments.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Baker J also used the opportunity:

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

Comment

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

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

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

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

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

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

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

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

All this, of course, suggests that everyone should:

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

New Practice Directions out now!

The Practice Directions supporting the new Court of Protection Rules have been published now.  You can read them here.

The following are in force now:

PD3A- authorised court officers

PD3B- levels of judiciary

PD11A- Human Rights

PD12A-Jurisdiction to be exercised by certain judges

PD 20A-appeals

PD21A- allocation of appeals

The remainder will come into effect on 1st July 2015.

Practitioners’ attention is drawn in particular to the following:

PD 2A– supporting new Rule 3A (participation of P), and setting out the approach the court may take in deciding whether to appoint a Rule 3A representative.  Paragraph 11 describes the factors which the court will consider when deciding how P’s interests will best be furthered.  These will include for example where expert evidence is needed on P’s behalf which might be a trigger to joining P and appointing a litigation friend). Paragraph 12 makes suggestions as to who might properly be appointed a representative for P where P is not joined- for example a family member, friend, IMCA or Care Act advocate).

PD 3B- explaining the new “tiering” of judges.

PD3C- application of the CPR or FPR where there is a lacuna.

PD13A.  Rule 91(2A) now allows communication of information in accordance with Rule 13A, subject to a direction of the court.  Paragraphs 34 onwards set out the criteria for such communications, and for what purpose communication can be made.

PD19A– Costs.