Richard Gordon QC, ‘Thoughts on P v Cheshire West and P and Q’

Richard Gordon QC, Brick Court Chambers, delivered the closing address at the LAG 2014 community care conference which took place on the 5 December in London.

He has kindly agreed to let us post the speech on our blog.

Richard was leading counsel for the three successful appellants in the Supreme Court in P v Cheshire West; P and Q v Surrey County Council.

Download a copy of the address here.  This  is reproduced from the December issue of Community Care Law Reports.

“A sensible decision, not the pursuit of perfection”

Mr Justice Peter Jackson has expressed concern about the costs and delay – and associated “human misery” and drain on manpower- in two Court of Protection cases, which in his conservative estimate cost around £9,000 per month, largely paid for by the State.

 

You can read his strong judgment here. It echoes some of the comments made in the family sphere (V v V, [2011] EWHC 1190 (FAM); J v J [2014] EWHC (Fam)).

 

The following comments should be noted by practitioners:

 

  • The inconsistency of “extravagance” in CoP proceedings with the parties’ duty to assist the court in furthering the over-riding objective;
  • The importance of restraining excessive costs where P’s money is being spent on deciding his future, whether he likes it or not
  • The judge’s criticism of the “search for the ideal solution, leading to decent but imperfect solutions being rejected”- s1(5) “calls for a sensible decision, not the pursuit of perfection;
  • It is not necessary to take up “every conceivable legal or factual issue, rather than concentrating on the issues that really need to be resolved”.
  • The need for professional co-operation. Here the judge noted the role of the litigation friend in one of the cases: “This was epitomised in Case A, where the litigation friend’s submission focussed heavily on alleged shortcomings by the local authority, even to the extent that it was accompanied by a dense document entitled “Chronology of Faults”. But despite this, the author had no alternative solution to offer. The role of the litigation friend in representing P’s interests is not merely a passive one, discharged by critiquing other peoples’ efforts. Where he considers it in his client’s interest, he is entitled to research and present any realistic alternatives.“

 

 

 

The judge concluded:

 

  1. “The main responsibility for this situation and its solution must lie with the court, which has the power to control its proceedings. The purpose of this judgment is to express the view that the case management provisions in the Court of Protection Rules have proved inadequate on their own to secure the necessary changes in practice. While cases about children and cases about incapacitated adults have differences, their similarities are also obvious. There is a clear procedural analogy to be drawn between many welfare proceedings in the Court of Protection and proceedings under the Children Act. As a result of the Public Law Outline, robust case management, use of experts only where necessary, judicial continuity, and a statutory time-limit, the length of care cases has halved in two years. Yet Court of Protection proceedings can commonly start with no timetable at all for their conclusion, nor any early vision of what an acceptable outcome would look like. The young man in Case B is said to have a mental age of 8. What would we now say if it took five years – or 18 months – to decide the future of an 8-year-old?
  2. I therefore believe that the time has come to introduce the same disciplines in the Court of Protection as now apply in the Family Court. Accordingly, and at his request, I am sending a copy of this judgment to the President of the Court of Protection, Sir James Munby, for his consideration.”

 

 

LAG Community Care Conference 2014

LAG has just announced details of its annual community care conference on 5 December 2014:

Social care law developments: waving or drowning?

EARLY BIRD OFFER EXTENDED TO 24 NOVEMBER: click here

Lady Hale will be delivering the keynote speech and the closing remarks are from Richard Gordon QC on Cheshire West.

Panel discussions on:

  • The Care Act 2014 – good, bad or indifferent?
  • Mental capacity and deprivation of liberty
  • The new care landscape for adults who fail the eligibility hurdle and for carers

master classes in the following areas:

  • Public law challenges for disabled children and families
  • The future of paying for care
  • Community care and people from abroad
  • Human rights after McDonald v UK
  • Accountability and access to public law remedies
  • Best practice in health and welfare applications in the COP

 

Acting as a Litigation Friend in the Court of Protection – new Guidance now out

Alex has spent a significant part of this year working on guidance commissioned by the Department of Health for IMCAs, RPRs and other advocates (as well as family members and friends of putative ‘P’s) considering acting as litigation friends in the Court of Protection.

The guidance has now been published, and is hosted by the University of Manchester, available here.   As it says in its introduction:

Th[e] Guidance aims to demystify the Court of Protection generally and the role of litigation friend specifically so as to enable more people to consider taking up the role – thereby ensuring the better promotion and protection of the rights of those said to be lacking capacity to take their own decisions.

Because of its scope, it guidance may also serve as a useful (free) overview for others wishing to learn more about the Court of Protection.

The guidance is primarily aimed at proceedings relating to health and welfare, and its chapter headings are as follows:

A:    Overview

B:    An overview of the Court of Protection

C:    Who can be a litigation friend for P in proceedings before the Court of Protection?

D:    Becoming a litigation friend and instructing lawyers

E:    What does a litigation friend do?

F:    When is it appropriate to bring a case to the Court of Protection as litigation friend for P?

G:    How do cases before the Court of Protection proceed?

H:    When would an appointment of a litigation friend come to an end?

I:     Practicalities

J:     Frequently asked questions

K:    Useful sources of information

There are also appendices containing checklists, a template position statement and details of the ‘balance sheet’ approach.

Alex is very grateful indeed to the very many people who took the time to attend workshops and comment upon drafts, and generally – he hopes – to assist in producing a document that will be of actual use!

Re X (2): further amplification of judicial deprivation of liberty process

 On 16th October 2014 Sir James Munby P handed down his second judgment in Re X and others (Deprivation of Liberty) [2014] EWCOP 37.  In this he expanded on the preliminary judgment handed down on 7th August 2014 (Re X and others: Deprivation of Liberty [2014] EWCOP 25).

This new judgment does not answer all the questions which were before the President when he heard this case in June 2014, particularly some relating to the possible extension of urgent authorisations by the court (a further judgment addressing these points is still awaited)  It does however expand upon three questions:

 “(7)      Does P need to be joined to any application to the court seeking authorisation of a deprivation of liberty in order to meet the requirements of Article 5(1) ECHR or Article 6 or both?

(9)        If so, should there be a requirement that P … must have a litigation friend (whether by reference to the requirements of Article 5 ECHR and/or by reference to the requirements of Article 6 ECHR)?

(16)      If P or the detained resident requires a litigation friend, then: (a) Can a litigation friend who does not otherwise have the right to conduct litigation or provide advocacy services provide those services, in other words without instructing legal representatives, by virtue of their acting as litigation friend and without being authorised by the court under the Legal Services Act 2007 to do either or both …?”

The president answered the first question in the negative, using the analogy of wardship proceedings, where wards do not always have to be a party.    Drawing on his conclusions in RC v CC (By Her Litigation Friend the Official Solicitor) and X Local Authority [2014] EWCOP 131, [2014] COPLR 351, namely that the principles of disclosure in the family division also applied in the COP, and the essentially welfare-based nature of COP proceedings, he concluded that there is no distinction to be drawn between the need to join P in a COP case and the need to join a child who is a ward.

Turning to the Convention jurisprudence, the President noted P’s entitlement to the safeguards of Article 5(4) and the UNCRPD, and concluded:

Article 6 requires that P be able to participate in the proceedings in such a way as to enable P to present his case “properly and satisfactorily”: see Airey v Ireland (1979) 2 EHRR 305, para 24. More specifically, referring to Article 5, “it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded ‘the fundamental guarantees of procedure applied in matters of deprivation of liberty’.”: Winterwerp v Netherlands (1979) 2 EHRR 387, para 60. This may require the provision of legal assistance: Megyeri v Germany (1992) 15 EHRR 584, para 23. There is a margin of appreciation (see, for example, Shtukaturov v Russia (2012) 54 EHRR 962, para 68), but this cannot affect the very essence of the rights guaranteed by the Convention. The Strasbourg court has made clear that deprivation of liberty requires thorough scrutiny and that any interference with the rights of persons suffering from mental illness must, because they constitute a particularly vulnerable group, be subject to strict scrutiny. So the process must meet that demanding standard.

14. More generally, P should always be given the opportunity to be joined if he wishes and, whether joined as a party or not, must be given the support necessary to express views about the application and to participate in the proceedings to the extent that they wish. Typically P will also need some form of representation, professional though not necessarily always legal.

15. So long as these demanding standards are met, and in my judgment they can in principle be met without P being joined as a party, there is, as a matter of general principle, no requirement, whether in domestic law or under the Convention, for P to be a party.”

The suggestion that P will “need some form of representation, professional though not necessarily always legal” does not appear in the first Re X judgment.

The President then turned to the question of whether P could be participate and be represented in proceedings in the COP without being a party.  He concluded there is no such objection.  If P is participating other than as a party there is no need for a litigation friend: so P could be represented without one.

If P is a party, then there is no reason in principle why the rules cannot be amended to allow P to act without a litigation friend:

“19. The next question is whether, assuming that P is a party, he is required to act by a litigation friend. The general principle is long-established, and hardly requires citation of authority, that in welfare proceedings, as in any other kind of litigation, a child or incapacitated adult can participate as a party only if represented by a litigation friend. But there are exceptions to this general rule. I mention two, though the first is now only of historical, indeed almost antiquarian, interest. In the days of the Lunacy Act 1890, although a person of unsound mind not so found by inquisition sued, like an infant, by a next friend or guardian ad litem, a lunatic so found by inquisition sued by the committee of his estate: see Daniell’s Chancery Practice pp 118-119, 121. Of more contemporary significance is rule 16.6 of the Family Procedure Rules 2010, replacing rule 9.2A of the Family Proceedings Rules 1991, which permits a child in certain circumstances to conduct proceedings without a children’s guardian or litigation friend.

23. In his submissions, Mr Jonathan Butler helpfully drew attention to the practice in the First-tier Tribunal (Health Education and Social Care Chamber), and previously in the Mental Health Review Tribunal, where the relevant rule provides for the appointment of a legal representative – not a litigation friend – where the patient, a party to the proceedings before the Tribunal, lacks capacity: see AA v Cheshire and Wirral Partnership HNS Foundation Trust and ZZ [2009] UKUT 195 (AAC), [2009] 1 MHLR 308. Mr Butler suggests that the sole question to be asked is whether the requirement for a litigation friend is necessary for P to have a voice within proceedings? The answer, he suggests, and I agree, can in part be found in the decision in that case.

24. These examples demonstrate, in my judgment, that there is no fundamental principle in our domestic law which dictates that P, if a party, must have a litigation friend. The question is ultimately one going to the practice of the particular court or tribunal. Generally speaking, the practice – the rule – has long been that those who lack capacity must have a litigation friend. But that is all.

25.  At present Rule 141(1) requires P, if a party, to have a litigation friend.

26. The requirement to have a litigation friend is compliant with, but not mandated by, the Convention: RP v United Kingdom [2013] 1 FLR 744. The Convention requirement is to ensure that P’s interests are properly represented and that does not, of itself, require the appointment of a litigation friend.

27.  Again, this is a matter which requires consideration by the Committee.”

The President repeated his view that a litigation friend could act without legal representatives but required permission of the court to act as advocate for P.

He concluded:

“36. It is not for me in this judgment to advise the Committee how to proceed. There is, however, one aspect of the matter to which the Committee will, I suggest, need to give careful consideration. It is essential that where the issue concerns P’s deprivation of liberty the Court of Protection’s processes are rigorous, so that the circumstances of the individual case are subjected, as they must be, to the strict scrutiny demanded by the Convention. Both our domestic law and the Convention impose demanding standards. But the need to meet this challenge must not be allowed to lead to a system of technical requirements which may, in the real world, operate to deny P the speedy access to a judicial determination which is the very essence of what is required. To speak plainly, the Committee will have to consider how best to craft a process which, while it meets the demanding requirement of the law, also has regard to the realities consequent upon (a) the legal aid regime and (b) the exposure of a litigation friend to a costs risk. There is no point in a system which requires there to be a litigation friend, let alone which requires the litigation friend to instruct lawyers, if the reality is that there is, because of an absence of legal aid and possible exposure to an adverse costs order, no-one willing and able to accept appointment as litigation friend. Indeed, such a system would be self-defeating. And in this connection it needs to be remembered that the Official Solicitor can never be compelled to accept appointment. Moreover, as I understand it, he is not funded to act as a litigation friend in deprivation of liberty cases, so he is dependent on external funding which in many cases will not be available in the absence of legal aid.

The costs consequences of setting a juggernaut in motion

The consequences of a failure properly to comply with the provisions of the MCA in the safeguarding context have been highlighted in Milton Keynes Council v RR & Ors (Costs Judgment), the sequel to a singularly unfortunate case described in the Thirty Nine Essex Street’s Mental Capacity Law Newsletter here, involving the unlawful removal of an elderly lady from her home and a failure timeously to investigate and (ultimately) to withdraw allegations against her son and her son’s partner.

In departing from the general rules applicable to costs in personal welfare proceedings and awarding the son the entirety of his costs, District Judge Mort did not mince his words.  He considered initial failures to investigate safeguarding alerts to be “deplorable,” the process of removal and the absence of any lawful basis for the same to be “[as] lamentable and inexcusable set of circumstances [as can be imagined],” and was critical of the failure of the Council subsequently to investigate the safeguarding allegations underpinning their tardy application to the CoP before the Council “surprisingly” abandoned them.   In conclusion, he held:

36. MKC had set a juggernaut in motion by their initial failure to investigate the safeguarding alerts and their decision to remove P from her home in circumstances which were unlawful. This case concerned the very sad and tragic consequences for P which flowed from that decision.

37. I have no difficulty in concluding that MKC’s practice in this case was substandard. It is P’s misfortune to have been the victim of that substandard practice. MKC’s acts and omissions have detrimentally affected both P and her family and changed the course of their lives.

38. In my judgment an award of costs is manifestly justified. I have considered whether a partial costs order is appropriate but have come to the conclusion that this is an exceptional case in which a full costs order is justified.”

The difficulties of responding to safeguarding alerts in the context of adults who lack capacity to take their own decisions are grave; it is, though, of cardinal importance to remember (a) that ‘safeguarding’ provides no additional legal basis upon which actions can be taken by public authorities to intervene in their lives; and (b) the Court of Protection is a court, and ‘safeguarding’ applications to the CoP must be brought after as full and rigorous investigation of whether the allegations underpinning such applications can be made out as is possible in the time available.  It is not surprising that a combination of a failure to bring matters to the CoP in advance of removal and then a failure to analyse timeously and rigorously the basis upon which that removal was said to be justified warranted the costs award made in this case.