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Section 49 reports – the thorny issues

Summary

Somewhat surprisingly, the question of the responsibility of NHS bodies/local authorities to provide s.49 MCA reports at no cost to the parties has not been the subject of a reported judgment until now (although I am aware of both unreported judgments and observations expressed by judges in the course of hearings).     In RS v LCC & Ors [2015] EWCOP 56, District Judge Bellamy has now stepped into the breach, although, as he noted, the difficult questions arising the provision of s.49 reports and their consequences for public bodies may ultimately have to be considered elsewhere.

The detailed facts of the case are not relevant. Suffice it to say to say that, during the course of a s.21A application, the court required a s.49 report to be provided by the mental health Trust responsible for P, addressing her capacity “as the gateway to the jurisdiction of the court.”   The relevant NHS Trust declined to provide the report, both on the basis that it was impossible to provide it, and – more fundamentally – that it was inappropriate for the evidence sought to be provided by way of an order under s.49.    The Trust’s objections were both specific to the nature of the evidence sought and more generally directed to the application of s.49 in respect of individuals for whom they already had a clinical responsibility.   The Trust advanced 10 reasons to support their view that it was inappropriate for the required evidence to be obtained by way of Section 49.    As District Judge Bellamy then addressed each of these reasons in turn, it is convenient to set out each of the objections together with his conclusions on each point in turn:

(1)  The Trust has no clinical involvement or knowledge of P (other than the information contained in the applicant’s enclosed letter). P is not a patient under the Mental Health Services of the Trust.

Conclusion: While I note the argument there is no such distinction [i.e. between patients and non-patients] drawn within the powers given in Section 49 and the accompanying Rules or Practice Direction. In my view it would be wrong for the court to undertake such distinction either in the preparation of its orders generally or in this order in particular.

There appears to be a clear dispute on capacity the outcome of which may have a significant impact on P’s future care and welfare. Such a dispute should properly be resolved by way of a jointly instructed independent court expert. It is not appropriate to seek quasi expert evidence through Section 49.

Conclusion: The dispute as to capacity has arisen following a report from a consultant psychiatrist dealing with matters pertaining to a lasting power of attorney. There is an existing assessment by a consultant psychiatrist Dr Loosmore and a very experienced social worker. A question has therefore arisen in relation to RS as to the extent or otherwise of her capacity. It is a matter well suited for determination by Section 49 which is a proportionate response as opposed to an instruction to an independent expert. Such direction would have additional funding and cost consequences particularly in the instant case where three of the parties are either publicly funded or public bodies and the fourth is privately paying albeit acting in person. Furthermore a Section 49 Report would [or should at any rate] incur significantly less delay.

(3)  A Section 49 Report is not a joint instruction and therefore can potentially leave open a dispute in the event that the evidence is not accepted by all parties. We understand that the first Respondent was not in agreement that Section 49 is appropriate.

Conclusion: A Section 49 Report is a direction of the court. If a letter of instruction cannot be agreed the court will deal with any such dispute. It was the court’s direction and not that of any specific party.

The Trust’s consultants are not court experts: they do not have the expertise in preparation of Medico Legal reports and should not be expected to do so, particularly where it is not in connection with a patient under their care.

Conclusion: The Rules and in particular the Practice Direction are clear as to the contents and format of a report. If that format is followed specific medico legal experience is not required. However, given the significant growth in the volume of work undertaken by the Court of Protection and in particular Section 21A or related challenges, it is no doubt a level of expertise that all consultant psychiatrists particularly dealing with the elderly will acquire if they have not already done so.

(5) We understand a report in the proceedings has been prepared on a private instruction by Dr Gonzalez (of the Trust). There is a potential conflict of interests in seeking a further report from a consultant of the Trust.

Conclusion: The court can see no potential conflict of interest in another consultant of the Trust preparing a report. Again the duty of the author of the report is fully set out in the Rules and Practice Direction.

(6) The request was a publicly funded body into proceedings of which it has no involvement.

Conclusion: The provisions of Section 49 are clear. There is a wide range in power to direct a report from an NHS body as the court considers appropriate. It is common for Section 49 Reports to be directed in this way.

(7) Complying with the request places a significant and disproportionate burden on limited NHS resources.

Conclusion: The court has sympathy with the effect of its order upon the Trust. However as is noted earlier no provision is made within Section 49 in relation to fees or expenses incurred by the author of the report (be it NHS body, Trust or otherwise). What the court will do is to carefully consider resources and listen to any argument from the Trust particularly in relation to the time for compliance and the scope of the work to be undertaken. That would appear to be both a reasonable and proportionate approach.

A consultant would need to cancel clinics to make time to prepare the report; putting vulnerable patients at risk.

Conclusion: While this is noted the answer to 7 would seem to cover this.

(9) There is no provision for costs of the report in order to enable the Trust to employ locum cover for the report author. The Trust is already under significant pressure to reduce its locum cover:

Conclusion:  I have already dealt with this in 7 above.

(10) Even where locum cover can be sourced this can be detrimental to patients if they are not able to see their usual consultant with whom they have built a trusting professional relationship. Consistency of care is an important factor in mental health care and should be maintained wherever possible.

Conclusion: As stated above every effort will be made to accommodate the preparation and extent of the report so as to limit wherever possible the disruption in healthcare provided by a consultant to his patients.

District Judge Bellamy therefore declined to vary or alter the principle behind the original order directing the s.49 report, although he noted that: “it must be right that compliance with any order is subject to reasonable adjustment on application by the Trust in relation to the scope and extent of any report ordered and the time for compliance. However such applications must be made promptly and supported by evidence on behalf of the Trust or NHS body.”

Comment

On the very specific facts of this case, an immediate question comes to my mind as to why District Judge Bellamy did not seek a report (under s.49) from a Special Visitor.   If the issue to be addressed was that of P’s capacity, and the court felt that it needed independent expertise in order, the obvious route to obtain that evidence is undoubtedly that provided for by the Special Visitor route.   There may well have been reasons not apparent on the face of the judgment why such a course was not open to him, and, if so, then the course adopted would appear to have been both proportionate and reasonable.  The conclusion that a public body cannot seek to recoup the costs of preparation of such a report is also undoubtedly correct.

The case, though, does raise a wider point about the importance of s.49 reports that may be at risk of being lost in the (understandable) concerns expressed by public bodies as to the time and resources that may be required where they are directed to provide such reports.   The Court of Protection is a strange beast. It is regularly said to be inquisitorial in its jurisdiction: see, e.g. Re G [2014] EWCOP 1361 at paragraph 26. However, by comparison with the Family Division/Family Court, which is also said to discharge an inquisitorial jurisdiction, the Court is strangely underpowered – there is, in particular, no equivalent to a children’s guardian (whether a consequence is that the role of litigation friend in the COP is being distorted is something I am working on at present).   If COP judges are to be put in a position where they are able properly to assess the questions of P’s capacity and best interests, it is crucial that they are, themselves, able to identify and call for such evidence as they see fit.  Section 49 is therefore vital, both as regards the ability to call for reports from (Special) Visitors and for evidence from NHS bodies/local authorities.   There is undoubtedly a price to be paid in consequence by such bodies, but, societally, it is a small one to pay for the proper determination of such cases.

Re X considered (and limited)

The fall out from Re X continues.   A hearing has been listed (in public) for 30-31 July before Charles J to consider the matters raised in MOD & Ors [2015] EWCOP 47, with a number of other issues of general application.

In the interim, Baker J has had cause to consider Re X and Rule 3A on the very first day of the latter’s life.  In HSE Ireland v PD [2015] EWCOP 48, Baker J was asked to consider whether the subject of an application for recognition and enforcement of a foreign protective measure providing for their deprivation of liberty in England and Wales had to be made a party to the English proceedings.   This case, the sequel to HSE Ireland v PA & Ors [2015] EWCOP 38, required him to consider both the effect of Re X and the scope of the powers available to the court under Rule 3A.   In relation to Re X Baker J noted that:

“14. […] the Court concluded that the President had no jurisdiction to determine the issues upon which the appellants were appealing and, accordingly, the Court of Appeal had no jurisdiction to entertain the appeals. It could then be argued that the observations of the judges of the Court were (at best) obiter dicta or (possibly) merely dicta. It would, however, be extremely unwise for any judge at first instance to ignore what was said by the Court of Appeal. On the contrary, I consider that I must treat the dicta as the strongest possible indication of how the Court of Appeal would rule on the question before it, in the event that the issue returns to that Court as part of a legitimate appellate process.”

Baker J held that:

“31.  In Re X, the judges of the Court of Appeal were considering proceedings for orders authorising in the deprivation of liberty by the Court of Protection exercising its original jurisdiction under the MCA 2005. They were not asked to consider applications for the recognition and enforcement of foreign orders under Schedule 3. Their clear statements of principle, however, serve as a strong reminder of the importance to be attached to ensuring that P’s voice is heard on any application where deprivation of liberty is in issue.”

Hearing P’s voice was, though, at the heart of the process of recognition and enforcement.  Therefore, when carrying out the limited review of the process before the foreign court mandated by Articles 5 and 6 ECHR, the Court of Protection “must therefore bear in mind the observation of Black LJ at paragraph 86 that ‘it is generally considered indispensable in this country for the person’s whose liberty is at stake automatically to be a party to the proceedings in which the issue is to be decided.” To my mind, however, where the adult has been a party and represented in the proceedings before the foreign court, it is not ‘indispensable’ for that adult also to be a party before this court on an application for recognition and enforcement of the foreign order, given the limited scope of the enquiry required of this court when considering an application under Schedule 3.”

Baker J continued

“[e]ach case will turn on its own facts. In some cases, the court will conclude that the adult needs to be joined as a party immediately. In other cases, the court will adopt one or other of the alternative methods provided in Rule 3(A)(2). In a third category of case, the court will be satisfied on the information before it that the requirements of Schedule 3 are satisfied without taking any of the measures provided by Rule 3A(2)(a)-(d). In very urgent cases, the court may conclude that an interim order should be made without any representation by or on behalf of the adult, but direct that the question of representation should be reviewed at a later hearing. Such a course seems to me to be consistent with the analysis of Black LJ at paragraph 104 of Re X. In every case, however, when carrying out that analysis, the court must be alive to the danger identified by Black LJ, at paragraph 100 in Re X that the process may depend ‘entirely on the reliability and completeness of the information transmitted to the court by those charged with the task’ who may ‘be the very person/organisation for P to be deprived of his liberty.'”

Baker J anticipated that in the majority of applications for recognition and enforcement of this nature, joinder of the adult as a party will be considered necessary, but that in the majority of cases it will not.   He further noted that the flexibility provided for by Rule 3A was well-suited to Schedule 3 applications, and expressed the hope that a panel of Accredited Legal Representatives would be swiftly established because the appointment of an ALR would in many cases facilitate a quick but focussed analysis of the particular requirements of Schedule 3.   Pending such appointment, the court would need to consider in each case what other Rule 3A step should be taken.

Baker J emphasised that this decision was taken in the an area “where the principles of comity and co-operation between courts of different countries are of particular importance in the interests of the individual concerned. The court asked to recognise a foreign order should work with the grain of that order, rather than raise procedural hurdles which may delay or impeded the implementation of the order in a way that may cause harm to the interests of the individual. If the court to which the application for recognition is made has concerns as to whether the adult was properly heard before the court of origin, it should as a first step raise those concerns promptly with the court of origin, rather than simply refuse recognition.”   Further, “The purpose of Schedule 3 is to facilitate the recognition and enforcement of protective measures for the benefits of vulnerable adults. The court to whom such an application is made must ensure that the limited review required by Schedule 3 goes not further than the terms of the Schedule require and, in particular, does not trespass into the reconsideration of the merits of the order which are entirely a matter for the court of origin.“

Comment

Baker J’s conclusion as to the status of the dicta in Re X is not surprising.  Nor, I suggest, is the conclusion that he reached as to how those dicta apply in the narrow (but important) field of recognition and enforcement.   It is clearly of the highest importance that the individual concerned is properly heard (or properly enabled to participate) before the court that is taking the decision to deprive them of their liberty.   It is not immediately obvious why it is that they should then need to be joined as a party to proceedings for recognition and enforcement of that order before the Court of Protection, so long as the COP is both enabled – and indeed required – to assure itself that the individual in question has been so heard.

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.

Rule changes and new forms are here!

A reminder that today, 1 July, is a big day at COP Towers because:

(1)  The remainder of the first round of COPR rule changes come into force today: an unofficial compilation of the amendments with a commentary by Alex can be found here;

(2) New Practice Directions are in force to accompany the Rules, available here;

(3) New forms are available here (do not misled by the fact some of them suggest that they are the old versions on the link – they are the new forms as can been seen in the top left hand corner of each: check it has 07.15 below the relevant COP1 etc number); and

(4)  New LPA forms are available here.

We are hard at work providing updates here as to how the changes affect the text of the Handbook, so keep checking back over the next week or so for more.

New Practice Directions now out

In advance of the COP Rule changes coming into force on 1 July, we have updated the legislative materials page of the Handbook website to give you the updated (or new) Practice Directions.   We will be providing updates to the book on the website pending further rules changes being made (hopefully) later this year and a second edition next year.

New COP forms – samples now available

Samples of the new COP forms which will take effect on 1 July are now available here.

The annexes that will be required are as follows:

 Deputy, proposed deputy or other:
 Appointment of deputy for property and affairs COP1A
Property and affairs (where deputy not required) COP1A
Appointment of deputy for personal welfare COP1B
Personal welfare order (where deputy not required) COP1B
Application relating to a statutory will, codicil, gift(s), deed of variation or other settlement of property COP1C
Application relating to the appointment or discharge of a trustee COP1D and COP12
Application by existing deputy COP1E
Other applications COP24
 Enduring Powers of Attorney (EPA) or Lasting Powers of Attorney (LPA):
Question of validity or operation of an EPA/LPA COP1F
Application relating to a statutory will, codicil, gift(s), deed of variation or other settlement of property COP1C
Application relating to the appointment or discharge of a trustee COP1D and COP12
Application by existing attorney COP1E
Other applications COP24

We will provide links to the ‘live’ forms as soon as they are ready.

Re X – the Court of Appeal pronounces

Summary

The vexed question as to whether P needs to be a party to proceedings for authorisation of deprivation of liberty has now been answered, although not in the fashion that we might have expected.

In a detailed and very lengthy (45 page) judgment [2015] EWCA Civ 599, the Court of Appeal has held that it did not have jurisdiction to hear the appeals brought against the decisions in Re X Nos 1 and 2 [2014] EWCOP 25 and [2014] EWCOP 37.  In essence this was because the Court of Appeal considered that the President had not in fact made any decisions against which an appeal could lie.  All the members of the Court of Appeal identified, in different ways, the difficulties with the route that the President had adopted in terms of undertaking what was “in substance a consultative exercise intended to promote the development of new rules of procedure,” which was not something that the court was entitled to undertake (paragraph 146, per Moore-Bick LJ).

Importantly, however, all three of the members of the Court of Appeal made clear, in different ways, that the President’s conclusions (at least as regards Article 5) could not, in consequence, be considered authoritative (this is expressed most clearly by Gloster LJ at paragraph 127).

Further, and equally – if not more – importantly, all three members of the Court of Appeal made clear that those conclusions were flawed.   Whilst, strictly, these conclusions are obiter, they were very strongly expressed, Black LJ making clear that her 50 paragraphs of analysis on this point were firmly what she would have decided had the court had jurisdiction.   We therefore anticipate that very considerable weight would be placed upon them by any subsequent court considering (for instance) a challenge to the ‘Re X procedure.’

All three members of the Court of Appeal were clear that, at least as the Court of Protection is currently constituted, both fundamental principles of domestic law and the requirements of the ECHR demand that P be a party to proceedings for authorisation of deprivation of liberty:

The key paragraphs from each of the judgments are set out below.

Black LJ

1. “it is generally considered indispensable in this country for the person whose liberty is at stake automatically to be a party to the proceedings in which the issue is to be decided. The President’s conclusion that it was unnecessary for this to be so in relation to an adult without capacity appears therefore to run counter to normal domestic practice. It might, therefore, be thought to require very firm foundations if it is to be regarded as acceptable” (paragraph 86);

2. “Article 5 is not, of course, drafted in terms which reflect our domestic procedure and practice and nor does the jurisprudence of the ECtHR speak in those terms. It is not surprising therefore that it is not said explicitly that a person whose liberty is the subject of proceedings must be a party to those proceedings. It is necessary to consider the substance of what is said in the Article and the decisions concerning it and to determine how the required guarantees can be delivered in the procedural framework of the domestic legal system” (paragraph 93);

3.  “What is essential is 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’. In so far as special procedural safeguards are required because the person is not fully capable of acting for himself, they are there to secure the right and must not impair the ‘very essence’ of it.” (paragraph 94);

4.  “I can accept that, in theory, P need not always be a party to the proceedings if his participation in them can reliably be secured by other means. The question is, however, whether this can be done and, more importantly, whether the streamlined procedure contemplated by the President could be sufficiently relied upon to achieve it. In considering this, it has to be borne in mind that the President was establishing a process which was to be universal. It would be translated into action by many who were expert and efficient but, inevitably, also by some who were lacking in time or expertise or judgment. […] I am not suggesting bad faith on the part of those involved in the process, merely acknowledging the pressures and realities of everyday practice” (paragraph 96);

5.  “The problem with the President’s scheme, in my view, is at least twofold. First, it is heavily dependent upon P conveying a wish to be joined in the proceedings or opposition to the arrangements proposed for him, or someone else who has his interests at heart taking these points on his behalf. Secondly, it depends entirely on the reliability and completeness of the information transmitted to the court by those charged with the task. In many cases, this will be the very person/organisation seeking authorisation for P to be deprived of his liberty and the possibility of a conflict of interest is clear” (paragraph 100);

6.  Especially given the limitations with the consultation process contained in Annex C to the Re X forms, and the challenges of consulting with a person of impaired capacity, “[i]t is not appropriate, in my view, for P’s participation in proceedings to turn in any way upon whether he wishes to participate or indeed upon whether he expresses an objection to the form of care that is being provided or proposed. There is too high a risk of slip ups in such a scheme. Article 5 requires a greater guarantee against arbitrariness” (paragraph 103).

7.  “I do not go so far as to say that no scheme in relation to deprivation of liberty would comply with Article 5 unless it provided for deprivation of liberty proceedings in which P was formally a party. The Schedule A1 procedure (with the initial authorisation conferred by the local authority but with provision for a challenge under section 21A) has been accepted as providing appropriate safeguards in relation to deprivation of liberty and I entirely accept that it could be extended to cover a wider category of case. Furthermore, I accept that it might be possible to take the best of that procedure and to devise a less complex process which will still protect those whose liberty is in the balance. I cannot agree with the President, however, that the streamlined scheme he devised provides the elements required for compliance with Article 5. I stress that I am only concerned, at present, with whether P must be a party to the deprivation of liberty proceedings. Given the tools presently available in our domestic procedural law, I see no alternative to that being so in every case” (paragraph 104, emphasis added);

8.  Under the President’s scheme, “which amounts to placing an additional hurdle in the way of P participating in the proceedings – instead of being a party automatically, there is an additional process to be gone through before he is joined, namely the collection/provision of material to persuade the court that he wishes/needs to be joined… P therefore in a position which is the opposite of what the Strasbourg jurisprudence requires, namely that the essence of the Article 5 right must not be impaired and there might, in fact, need to be additional assistance provided to P to ensure that it is effective” (paragraph 107);

9. Even if the consequence were to be greater pressure on resources and delay, such were not material to a determination of whether there are adequate safeguards to satisfy Article 5. “For the reasons I have explained, had I been in a position to determine the issue in these proceedings, I would have held that in order that deprivations of liberty are reliably subjected to thorough scrutiny, and effective procedural safeguards are provided against arbitrary detention in practice, it is presently necessary for P to be a party in the relevant proceedings” (paragraph 108).

Gloster LJ

10.  “I am supported in this conclusion [that the President’s opinions are not authoritative] by the views of Lord Justice Moore-Bick and Lady Justice Black, with which I agree, that in any event the President’s conclusion – that a patient need not be made a party in order to ensure that the proceedings are properly constituted (even though he may be joined as a party at his request) – is not consistent with fundamental principles of domestic law and does not provide the degree of protection required by the Convention and the Strasbourg jurisprudence” (paragraph 127)

Moore-Bick LJ

11.  “In order to obtain a decision which binds a person of full age and sound mind it is necessary to make him a party to the proceedings and in the light of the approach adopted in Cheshire West, it is difficult to see why the same should not be true of a person who lacks capacity, despite the fact that he must act by a litigation friend, when his liberty is at stake” (paragraph 170);

12.  “The decision in Winterwerp v The Netherlands (1979) 2 E.H.R.R. 387 makes it clear that a person who lacks capacity must have access to a court and an effective opportunity to be heard, either in person or by means of representation. The fullest right to participation in proceedings is that which is enjoyed by the parties, but the streamlined procedure envisaged by the President contemplates that there will be cases in which a person lacking capacity will not be made a party because someone considers that it is unnecessary for that step to be taken. I agree with Black L.J. for the reasons she gives that a procedure under which such a person need not be made a party in order to ensure that the proceedings are properly to constituted (even though he may be joined as a party at his request) is not consistent with fundamental principles of domestic law and does not provide the degree of protection required by the Convention and the Strasbourg jurisprudence” (paragraph 171).

It is perhaps important to note that the Court of Appeal did not express any view upon the two other questions that were formally before it on the appeal, namely (1) whether in all cases an oral hearing is required; and (2) whether a litigation friend must act via a solicitor (unless they are themselves entitled to do so).     However, given the manner in which the Court of Appeal expressed themselves in relation to the President’s judgments, it can properly be said that the President’s conclusions in this regard must also be seen as the expression of opinion rather than authoritative decisions (indeed, strictly, extra-judicial opinion).

 Comment

The unusual saga that is Re X has reached a suitably unusual conclusion (as it is difficult to see how anyone could seek to take this further).

Quite where this leaves practitioners and the Court is, at present, not entirely clear.   However, it would appear very likely that the Re X procedure will have to be subject to an immediate overhaul so as to provide that P is joined in each case.   It may, however, be that this is short-lived because it might, potentially, be that other directions can be made under Rule 3A(2) (for instance the appointment of a representative or an accredited legal representative upon the creation of a panel of such representatives) who can secure P’s participation in such a way as to secure protection of their rights.   It should perhaps be noted that the draft of Rule 3A was, in fact, before the Court of Appeal, although no reference was made to it by any of the members of the court.

We suggest that this decision is likely:

1. To give an immediate impetus to development of the scheme for Accredited Legal Representatives so as to widen the pool of representation available where P is joined as a party;

2.  To add to the pressure to ensure that a suitable regime is put in place sooner rather than later that provides for the administrative authorisation of deprivation of liberty in settings outside hospitals and care homes.   The time-frame of 2017 for the Law Commission’s report is looking increasingly problematic in this regard, we would suggest.

We should perhaps emphasise three final points:

1.  no party to what (in fact was not) the appeal against (what in fact were not) the decisions of the President challenged his conclusions as to the evidential requirements that must be satisfied before a judge can authorise a deprivation of liberty. Nor did the Court of Appeal cast any doubt upon his conclusions that, for instance, there must be objective medical evidence that the individual is ‘of unsound mind.’ Given how robust they were in their conclusions as to the We would therefore suggest that it is clear that whatever procedure is enacted by the court (and in due course whatever replacement is proposed by the Law Commission) can properly proceed on the basis that the President properly identified the ‘irreducible matters’ that must be addressed in evidence to comply with Article 5(1)(e) ECHR.

2.  Linked to this, we would strongly advise that local authorities and CCGs who are responsible for care arrangements that give rise to deprivations of liberty outside hospitals and care homes do not delay in making applications until the Court of Protection has put in place a replacement for the Re X procedure.   This decision does not alter the obligation on such bodies to seek authorisation from the Court where such is necessary, nor does it alter the nature of the evidence that must be put before the Court – what it alters is what the Court must then do in order to ensure compliance with Article 5(1)(e) ECHR.

3.  Lastly practitioners must be alert to any ongoing welfare cases where P may not have been joined, or where P has been joined but no litigation friend has been appointed – perhaps for funding reasons – which involve P’s residence, where P’s living arrangements may satisfy the “acid test” in Cheshire West. In such cases there must be a question as to whether P has the ability to participate effectively (for a very recent example, see Bournemouth Borough Council v PS [2015] EWCOP 39).