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New all-singing all-dancing directions order for welfare proceedings (and other delights)

As some will have already discovered, the COP Handbook website includes a suite of (free) precedent orders.   We have recently updated a number of the precedent orders for welfare proceedings in light of case-law such as Re MN, and also taken the opportunity to add a new single ‘short order’ for authority to convey a person (for instance from home to a care home) in circumstances amounting to a deprivation of liberty.   Comments very welcome!   Alex and Sophy acknowledge with gratitude suggestions from Neil Allen, Tor Butler-Cole and Emma Stacey on these further iterations.

The Court of Protection comes of age

In the Matter of MN (Adult) [2015] EWCA Civ 411 (Court of Appeal (Sir James Munby P, Treacy and Gloster LJJ))

Summary

 As Sir James Munby P, giving the lead judgment of the Court of Appeal noted, this appeal “raise[d] fundamental questions as to the nature of the Court of Protection’s jurisdiction and, in particular, the approach it should adopt when a care provider is unwilling to provide, or to fund, the care sought, whether by the patient or, as here, by the patient’s family.”  The Court of Appeal also took the opportunity to give guidance as to conduct of welfare proceedings before the Court of Protection and to clarify when decisions, rather than declarations, should be sought.

The appeal was brought, separately, by both parents of a young man, MN, against the judgment of Eleanor King J (as she then was) [2013] EWHC 3859 (COP).    In very brief summary, at the final hearing of an application for declarations as to where a young man should live (and receive education and care), and for regulation of his contact with his parents and other family members, the relevant funding body, ACCG, had made it clear that it was not prepared to fund contact between P and his family at the parents’ home.  ACCG therefore submitted that this was not an option for the Court to consider when making best interests decisions; Counsel for the parents submitted that the Court should embark upon a trial in relation to home contact (and to the delivery of personal care by the man’s mother).   The jurisdictional issue to which this gave rise – i.e. as to the precise scope of the Court of Protection’s powers – arose very late in the day, but it having been fully argued, Eleanor King J  gave a full judgment upon the point.   Eleanor King J held that the Court of Protection was – in essence – bound to choose between the options that were actually available.

The scope of the Court’s jurisdiction

 After a characteristically thorough review of the authorities, Sir James Munby P had no hesitation in concluding that Eleanor King J was correct essentially for the reasons that she had given:

 “80. The function of the Court of Protection is to take, on behalf of adults who lack capacity, the decisions which, if they had capacity, they would take themselves. The Court of Protection has no more power, just because it is acting on behalf of an adult who lacks capacity, to obtain resources or facilities from a third party, whether a private individual or a public authority, than the adult if he had capacity would be able to obtain himself. The A v Liverpool principle [[1982] AC 363] applies as much to the Court of Protection as it applies to the family court or the Family Division. The analyses in A v A Health Authority and in Holmes-Moorhouse likewise apply as much in the Court of Protection as in the family court or the Family Division. The Court of Protection is thus confined to choosing between available options, including those which there is good reason to believe will be forthcoming in the foreseeable future.

81. The Court of Protection, like the family court and the Family Division, can explore the care plan being put forward by a public authority and, where appropriate, require the authority to go away and think again. Rigorous probing, searching questions and persuasion are permissible; pressure is not. And in the final analysis the Court of Protection cannot compel a public authority to agree to a care plan which the authority is unwilling to implement. I agree with the point Eleanor King J made in her judgment (para 57):

‘In my judgment, such discussions and judicial encouragement for flexibility and negotiation in respect of a care package are actively to be encouraged. Such negotiations are however a far cry from the court embarking on a ‘best interests’ trial with a view to determining whether or not an option which has been said by care provider (in the exercise of their statutory duties) not to be available, is nevertheless in the patient’s best interest.’”

The President identified four reasons why the Court of Protection should not embark upon hypothetical examinations of where an individual’s best interests lie:

  1. It is not the proper function of the Court of Protection to embark upon a factual inquiry into some abstract issue the answer to which cannot affect the outcome of the proceedings before it;
  2. It is not a proper function of the Court of Protection (nor of the family court of the Family Division) to embark upon a factual inquiry designed to create a platform or springboard for possible future proceedings in the Administrative Court.
  3. Such an exercise runs the risk of confusing the very different perspectives and principles which govern the exercise by the Court of Protection of its functions and those which govern the exercise by the public authority of its functions – and, in consequence, the very different issues which arise for determination in the Court of Protection in contrast to those which arise for determination in the Administrative Court.
  4. Such an exercise runs the risk of exposing the public authority to impermissible pressure. The President noted that Eleanor King J had rightly identified at paragraph 59 of her judgment the need to:

“avoid a situation arising where the already vastly overstretched Court of Protection would be routinely asked to make hypothetical decisions in relation to ‘best interests’, with the consequence that CCGs are driven to fund such packages or be faced with the threat of expensive and lengthy judicial review proceedings.”

Sir James Munby noted that the present case illustrated the point to perfection: “The present case, it might be thought, illustrates the point to perfection. The proposal was that the judge should spend three days, poring over more than 2,000 of pages of evidence, to come to a ‘best interests’ interest on an abstract question, and all for what?”

Human Rights

A separate issue on the appeal was as to whether the Court of Protection had jurisdiction to determine claims raising issues under the HRA 1998 and (if so) how it should proceed to determine such claims where they were pleaded during the currency of ‘substantive’ proceedings.   Sir James Munby agreed with the approach adopted by Eleanor King J, holding (at paragraph 85) that “the decision of the Court of Appeal in Re V is clear authority for the proposition that the Court of Protection (which in this respect can be in no worse position than the family court or the Family Division) has jurisdiction to determine a human rights claim brought under section 7 of the Human Rights Act 1998.”   Sir James Munby agreed with Eleanor King J that such a claim must be clearly identified and properly pleaded.    He emphasised, however, that nothing in Re V had cast doubt upon the proposition that the HRA 1998 had not collapsed the fundamental distinction between public law and private law.  As he had stated previously in R (Anton) v Secretary of State for the Home Department [2004] EWHC 2730/2731 (Admin/Fam): “[a] case which, properly analysed, is a public law case is not transformed into something different merely because Convention rights are relied upon.”

Practice and procedure: when should declarations be used?

As the President noted, there had been a certain amount of debate during the course of oral argument as to the use of declaratory orders in the Court of Protection.  Whilst he noted that this was not the occasion for any definitive pronouncement, he made three observations:

  1. The “still inveterate use of orders in the form of declaratory relief might be thought to be in significant part both anachronistic and inappropriate.” This use originated at a time when, following the decision of the House of Lords in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, it was believed that the inherent jurisdiction of the Family Division in relation to incapacitated adults was confined to a jurisdiction to declare something either lawful or unlawful.  This had already been shown to be unduly narrow before the MCA 2005 had come into force, and the Court of Protection has, in addition to the declaratory jurisdiction referred to in section 15 of the 2005 Act, the more extensive powers conferred by section 16.
  2. The CoP is a creature of statute, and s.15 MCA 2005 is very precise as to the power of the Court of Protection to grant declarations.  Given these very precise terms, the President noted, “it is not at all clear that the general powers conferred on the Court of Protection by section 47(1) of the 2005 Act extend to the granting of declarations in a form not provided for by section 15. Indeed, the better view is that probably they do not: consider XCC v AA and others [2012] EWHC 2183 (COP), [2012] COPLR 730, para 48.” Further, as the President emphasised: “it is to be noted that section 15(1)(c) does not confer any general power to make bare declarations as to best interests; it is very precise in defining the power in terms of declarations as to ‘lawfulness’. The distinction is important: see the analysis in St Helens Borough Council v PE [2006] EWHC 3460 (Fam), [2007] 1 FLR 1115, paras 11-18.”
  3. A declaration has no coercive effect and cannot be enforced by committal: see A v A Health Authority, paras 118-128 and, most recently, MASM v MMAM and others [2015] EWCOP 3. All in all, the President concluded,

“91.. . it might be thought that, unless the desired order clearly falls within the ambit of section 15, orders are better framed in terms of relief under section 16 and that, if non-compliance or interference with the arrangements put in place by the Court of Protection is thought to be a risk, that risk should be met by extracting appropriate undertakings or, if suitable undertakings are not forthcoming, granting an injunction.” 

Practice and procedure: identification of issues

The President reiterated the importance of the need identified by Charles J in A Local Authority v PB and P [2011] EWHC 502 (COP), [2011] COPLR Con Vol 166, paras 31-33, to identify, flag up and address, well before a personal welfare case comes on for hearing in the Court of Protection, (i) any jurisdictional issues and the legal arguments relating to them and, more generally, (ii) the issues, the nature of each party’s case, the facts that need to be established and the evidence to be given.    This identification had not taken place until a very late stage before Eleanor King and, as he noted “[s]teps need to be taken to ensure, as best can be, that there is no repetition of this kind of problem.”

This led on to wider observations by the President as to the conduct of welfare proceedings before the Court of Protection:

  1. Whilst he was “very conscious” that one must not push too far the analogy between personal welfare proceedings in the Court of Protection and care proceedings in the family court, the President noted that they do share a number of common forensic characteristics. “Even allowing for the fact – not that it arose in this particular case – that cases in the Court of Protection may involve disputes about capacity which, in the nature of things, do not feature in care cases, there is a striking contrast between the time some personal welfare cases in the Court of Protection take to reach finality and the six-month time limit applicable in care proceedings by virtue of section 32(1)(a)(ii) of the 1989 Act. The present case, it might be thought, is a bad example of what I fear is still an all-too prevalent problem.”
  2. The delays in the instant case, the President held, were not caused by any one party nor by any one factor. “The truth is that this case, like too many other ‘heavy’ personal welfare cases in the Court of Protection, demonstrates systemic failures which have contributed to a culture in which unacceptable delay is far too readily tolerated.”The President emphasised the nature of the “cultural revolution” that had taken place in the family court with the introduction of the Public Law Outline; he considered (and noted that others had also noted in judgments), that the Court of Protection needed to learn from this, stressing in particular (1) the harm that can be caused by the search for an ideal solution, leading to decent but imperfect solutions being rejected; and (2) the need to concentrate on the issues that really need to be resolved, rather than every conceivable legal or factual issue.   He therefore endorsed the call made by Peter Jackson J in Re A and B (Court of Protection: Delay and Costs) [2014] EWCOP 48 for the same disciplines to be introduced into the CoP as now apply in the family court, noting in this regard the work of the ad hoc Court of Protection Rules Committee;
  3. The President deprecated in particular the quantity of material before the court, noting that he confessed to being surprised “and that is a pretty anaemic word” upon learning that the evidence ran to 2,029 pages of evidence. He noted that it might be thought that PD13B should be amended to bring it into line with PD27A in the Family Court, providing that the bundle must not exceed one lever arch containing no more than 350 pages unless a larger bundle has been specifically authorised by a judge.
  4. Finally, the President considered that “early consideration needs to be given” to the amendment of COPR r.121 to bring into line with s.13(6) Children and Families Act 2014, so as to limit expert evidence to that “necessary to assist the court to resolve the proceedings justly.”

Comment

Jurisdiction

In many ways, the judgment of the President (with whom Treacy and Gloster LJJ agreed) as to the jurisdiction of the Court of Protection should have come as no surprise, reflecting as it did the application of a long line of authorities (dating back over 25 years).  However, this does not diminish its importance or the clarity of mind that it then requires all those concerned with the MCA 2005 to bring to decision-making in relation to those who lack capacity in one or more domains related to their care arrangements.    Indeed, the judgment is perhaps as if not more important for those concerned with the MCA outside the court arena, reinforcing as it does the need always to be clear what decision is being taken in relation to a person who may lack capacity in one or more domains:

  1. There are some decisions where the person’s decision-making capacity is irrelevant. A stark example is the decision of a doctor not to offer a particular treatment to a person because they consider it is futile.   This decision does not depend upon the person’s ability to consent or refuse it.   Even if they demanded it they could not compel the doctor to provide it: see Aintree v James;
  2. There are some decisions where the person’s capacity is vitally important and, if they lack the capacity, a best interests decision must be taken on their behalf.   For instance, a decision must be taken about whether a person should go into care home A or care home B, either of which is available.   They cannot decide and a decision must be taken on their behalf;
  3. Most decisions regarding care and treatment are taken informally in reliance upon s.5 MCA 2005.   This provides a defence to liability in respect of acts in connection with care or treatment where the person or body carrying out the care or treatment reasonably believes that the person lacks the capacity to take the decision and the steps taken are in their best interests; This was emphasised by Baker in G v E [2010] EWCOP 2512: “the vast majority of decisions are taken informally and collaboratively by individuals or groups of people consulting and working together;”
  4. But it is vitally important to remember that the MCA 2005 only provides that a best interests decision is taken where the individual would take or participate in the taking of a decision;
  5. This means that not all decisions taken by a public body about care provision – i.e. how to meet the assessed needs of the individual – are best interests decisions. As Nicholas Paines QC the Deputy Judge said in R (Chatting) v (1) Viridian Housing (2) London Borough of Wandsworth [2012] EWHC 3595 (Admin) “the fact that Miss Chatting is mentally incapacitated does not import the test of ‘what is in her best interests?’ as the yardstick by which all care decisions are to be made” (a passage specifically endorsed by Sir James Munby P in ACCG);
  6. That does not mean that such decisions are not to be taken without reference to the individual’s welfare or their views, but they are decisions which are, ultimately, decisions that are taken by the public bodies in discharge of their public law obligations, not decisions taken on behalf of the individual in question. They are therefore not best interests decisions, and (1) any meetings which are convened to discuss them should not be labelled best interests meetings; and (2) any challenge to them lies not in the Court of Protection but in the Administrative Court.

None of the points set out above are – or should be – surprising, but in and out of the court arena we do continue to find that confusion creeps in, leading – where it is not checked – both to (inadvertently) misleading conversations with families and in some cases to expensive and misguided legislation.   One particular area that we find where this happens with considerable regularity is in relation to discharge planning from hospital: it is absolutely vital that the relevant statutory bodies are clear with themselves in advance of any meeting with the patient/family members precisely which options are on the table, and which (in proper discharge of their public law functions) they are not prepared to fund.

It is perhaps helpful by analogy to have in mind the One Chance to Get It Right guidance on care-planning at the end of life and the very clear distinctions drawn there between several types of conversations that clinicians may have.   In other words, is the conversation that the public body employee would wish to have with the person whose capacity is in issue a conversation to:

  1. Inform them about a decision;
  2. Consult them about a decision;
  3. Involve them about a decision; or
  4. Seek that they take that decision?

The first type of conversation can never lead to a best interests decision being taken where P lacks the capacity formally to engage in it; the second may not, even the third may (in some circumstances), and it is only in respect of the fourth type of conversation that it will be clear that a best interests decision will be made.    Put another way, it is only if the decision-maker is standing in the shoes of P that we can properly say that a best interests decision is being made.

Importantly, if a public body brings a matter to the Court of Protection for determination as to where an individual’s best interests lie, then it lies in the court’s power to direct the public body to file evidence (including care plans), even though the plan’s contents may not or do not reflect its formal position, “for it is not for the local authority (or indeed any other party) to decide whether it is going to restrict or limit the evidence that it presents: see Re W (Care Proceedings: Functions of Court and Local Authority) [2013] EWCA Civ 1227, [2014] 2 FLR 431” (ACCG at paragraph 37).   The analogy between child care proceedings and welfare proceedings will be further strengthened in this regard come 1st July 2015, when Rule 87A comes into effect, requiring the permission of the court before proceedings may be withdrawn.   In other words, there will be times when public authorities either may or must seek the assistance of the Court of Protection in discharging their obligations towards those for whom they have responsibility; when they do – and for forensically similar reasons to those which apply in relation to child care proceedings – they must work in partnership with the court.

Decisions/declarations

As a significant amount of the debate before the Court of Appeal as regards the proper place to use decisions involved Alex, it is perhaps not entirely surprising that he entirely endorses the observations of the President!   More seriously, it is perhaps obvious when we raise our heads above the parapets (1) that is appropriate to make clear when the CoP is deciding on behalf of an individual as to a matter that they cannot determine because they lack capacity so to do; and (2) the easiest way for the Court to do this is for the Court simply say that it is by making an order under s.16(2)(a).   A side-benefit of this is that this makes it considerably easier to identify when it is, in fact, a decision that the individual can take, and hence – hopefully – avoiding the elephant traps into which those concerned fell in ACCG.

Case management

The President’s observations as to case management are noteworthy primarily for their trenchancy – they are otherwise entirely consistent with a rising drum-beat of judicial observations that the time has come to get the Court under control.    Precisely how this is to be done is a matter that will be exercising the ad hoc Rules Committee significantly over the coming few months.

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.

COPR: what do the new rules actually do (and mean)?

In part because the Court of Protection Amendment Rules are written in typically impenetrable statutory instrument style, and in part to give commentary to explain more as to the reasoning behind them, you can find here an unofficial consolidation of the Rules as they will be from 1st July 2015 with the changes incorporated, and here a version of the consolidated Rules with unofficial explanatory notes prepared by Alex.   We will be providing further updates in due course specifically tied to the relevant paragraphs in the book, and will also publish the new/amended Practice Directions when they become available.

All change at the COP (part 1)

The Court of Protection (Amendment) Rules 2015 were laid before Parliament on 9th March. Unless (which is very unlikely) the negative resolution procedure is invoked, the first part of the rules come into force in part on 6th April and the second, larger, part on 1st July.

They represent the first tranche of rule changes that will bring about the most fundamental reform of the Court’s processes since it came into being in 2007, reflecting the experiences of the first seven years of its life.

We will be covering the rule changes in more detail in due course and highlighting here precisely how they impact upon the current rules, as well as covering the suite of amendments to the accompanying Practice Directions.

This post serves as an overview.

The most important rule change – and the rule that we think it is proper to say most exercised the brain cells of the members of the ad hoc Rule Committee (including Alex and Sophy) – is the new Rule 3A, coming into force on 1st July 2015.   This rule fundamentally refocuses the approach of the Court of Protection to the participation of P.   It requires in each case the Court to consider, either on its own initiative or on the application of any person, consider whether it should make one or more of one of a ‘menu’ of directions relating to P’s participation.   That menu includes:

  1. P being a party;
  2. P’s participation being secured by the appointment of a representative whose primary function is to give P a ‘voice’ by relaying information as to P’s wishes and feelings;
  3. Specific provision for P to address (directly or indirectly) the judge determining the application; or
  4. No direction or an alternative direction (meeting the overriding objective) if P’s interests and position can properly be secured.

Equally importantly, assuming that the necessary steps are taken to enable this to happen by way of the creation of a panel of such representatives, Rule 3A provides that a direction may be made appointing an accredited legal representative (‘ALR’) to represent P. This can be done whether or not P is a party; importantly, if P is a party, then an ALR may be appointed without a litigation friend being appointed to act for P.   This innovation, drawn from Rule 11(7) of the Mental Health Tribunal Rules, is designed to supplement, not supplant, the role of litigation friends; the intention (as spelled out in the accompanying Practice Direction, 2A) is that ALRs can provide assistance where urgent orders are required and it is not possible to appoint a litigation friend.   They may also play an important role in ‘narrow’ applications such as applications under s.21A MCA 2005, thereby allowing the resources of litigation friends – whether the OS or otherwise – to be reserved for more complex cases where, for instance, expert evidence will be required.

Other important rule changes include (this summary being drawn in part from the Explanatory Note):

  • Amending rule 4 to reinforce the duty of the parties to co-operate so as to further the overriding objective of dealing with cases justly having regard to the principles in the MCA 2005, and making express that a failure to cooperate (and to be full and frank in the disclosure of information and evidence to the court) can sound in costs.   This is a precursor to what we anticipate will be more detailed consideration to be given in the second tranche of rules to the question of how case management in the COP can be reinforced as to ensure that limited public monies and judicial time are deployed in a way properly calibrated to the nature of the issues at stake (i.e. picking up concerns voiced by Peter Jackson J in Re A and B (Costs and Delay) [2015] EWCOP 48).
  • Substituting a new Rule 9, which allows for the COP – in the case of a lacuna – to choose whether rules contained in the CPR or the FPR most appropriately fit the problem to be addressed. There is also provision to enable the version of the CPR or FPR to be applied to be specified – thereby getting round the problem which at exists at present in light of the mismatch between the CPR post-Jackson and the COPR as regards costs provisions;
  • Making amendments to Parts 8, 9 and 12 to remove the need for a separate application where permission is required, removing the requirement for permission in certain cases (most obviously Re X type applications where authority is sought by way of an order under s.16(2)(a) MCA 2005 to deprive a person of their liberty), and making it easier for the requirement for permission to be removed in other cases;
  • Introducing a requirement (in Rule 87A) that permission is required to withdraw proceedings (mirroring the provision in FPR r.29.4(2));
  • In Part 12 (dealing with applications), making amendments in relation to allocation of types of cases to levels of judge, reflecting the introduction of Tier 1, Tier 2 and Tier 3 categories of judge following widening of the pool of judges who may be judges of the Court of Protection by virtue of changes made by the Crime and Courts Act 2013;
  • In Part 13 (hearings), making amendments to allow communication of information about proceedings to third parties for specified purposes (for example, research), and for the court to be able to do this on its own initiative.   There is also an important amendment to Rule 95 clarifying that the court can admit, accept and act upon such information, whether oral or written, from P, any protected party or any person who lacks competence to give evidence, as the court considers sufficient, although not given on oath and whether or not it would be admissible in a court of law apart from this rule. This amendment picks up – belatedly – the decision of McFarlane J (as he then was) in Enfield LBC v SA [2010] EWHC 196 (Admin) and the ‘work around’ he gave there as to the admissibility of evidence from P.
  • Replacing Part 17, with details of how litigation friends and ‘Rule 3A’ representatives are to be appointed and how their appointment is to be brought to an end. It should be noted here that the new rule 144 ends the anomaly in the rules that existed previously that required P, in essence, to prove that they had litigation capacity: all P has to do now is to make an application
  • in Part 19 (costs), making amendments to ensure that where provisions of the Civil Procedure Rules are incorporated by reference, they do not include the Jackson reforms insofar as they relate (e.g.) to costs budgeting;
  • in Part 20 (appeals), which will come into force on 6th April, making provision for appeals within the Court of Protection between the different tiers of judge, and revised provision about appeals to the Court of Appeal; and
  • in Part 21 (enforcement), making amendments to ensure that where provisions of the Civil Procedure Rules are incorporated by reference, they are the provisions following recent amendment.

New forms are in train to pick up these changes, and we will provide updates as and when we can.

The ad hoc Committee very deliberately did not seek in this tranche to tackle some of the other thorny questions that face the Court, for instance relating to transparency, expert evidence and the extent to which a regime akin to the Public Law Outline should be imported.   This first tranche, however, will start the Court of Protection on a new trajectory that is, we believe, orientated more clearly around P.

Who decides as to death?

In an unusual and tragic case, Re A (A Child) [2015] EWHC 443 (Fam), brought by an NHS Trust seeking declarations as the fact that a child was brain dead and that the ventilator providing them with life support could be turned off, Hayden J has confirmed what should happen where there is doubt as to whether brain steam death has occurred in a child.  Although a Coroner has concurrent jurisdiction and the High Court has jurisdiction over a body, Hayden J referred with approval to the passage in Jervis on Coroners (13th Edition) at paragraph 5-14, which provides that:

“The coroner may also be faced with the difficult task of deciding whether a body in his area is actually dead, for instance when it is connected to a life support machine in an irreversible coma… it appears that once a person has suffered brain stem death which no medical treatment is able to reverse, the person is ‘dead’ for the purposes of the coroner acquiring jurisdiction even whilst a machine ventilates the body.”

Hayden J continued:

“21. […] That proposition is said to be supported by Mail Newspapers v Express Newspapers [1987] FSR 90; Airedale NHS Trust v Bland [1993] AC 789. The footnote also refers to Thurston’s Coronership: 3rd Edition 1985, which sets out the view that I have just recorded but also the opposing one, that while the heart beats and the blood circulates, there is no “dead” body i.e. for the purposes of establishing the Coroner’s jurisdiction. I note that the distinguished authors also make the following observation which, in tone, seems to imply that they regard it as self evident:

‘Of course, in practice no Coroner would insist on taking possession of the body were it was still connected to a life support system.’

 22.  I associate myself entirely with those observations. I cannot conceive of any circumstances in which the Coroner should seek to intervene, where a body remains ventilated, beyond those circumstances concerning the removal of organs where the family are consenting. Any other approach I regard as likely to generate immense distress and contribute to an atmosphere where sound judgment may be jeopardised.”

Exactly the same propositions must hold true in relation to adults and, as with a child, the proper forum for resolution of the questions that follow upon brain death must be the Court (in that case, the Court of Protection).

[A version of this note appeared in the March 2015 39 Essex Chambers Mental Capacity Law Newsletter]

What place morality (as compared to forensic rigour)?

Summary

In In the matter of A (A Child) [2015] EWFC 11 (Family Court (Sir James Munby P)), the President of the Family Division, Sir James Munby P, was extremely critical of the local authority’s analysis, handling of the case and conduct of the litigation in what he described it as “an object lesson, in almost a textbook example of, how not to embark upon and pursue a care case.”

This case concerned an application for a care order and placement order.  The child in question had been born while his mother was serving a prison sentence. He was accommodated in local authority foster care and the care application was not issued until some 8 months after his birth.

As well as proceeding on assumptions with no evidential basis, the local authority made repeated reference to the “immoral” nature of the father’s behaviour. The father’s immoral behaviour included having had sex with a 13 year old girl when he was 17 years old, and being a former member of the English Defence League (EDL).  Sir James Munby P made clear that the “morality” of the father’s character was neither appropriate nor relevant and that these aspects should never have featured as part of the local authority’s case. He was also at pains to emphasise that it was for the local authority to prove, on a balance of probabilities, the fact upon which it seeks to rely.

Comment

Although not a COP case, COP practitioners should take note of the President’s warning that:

“…the father may not be the best of parents, he may be a less than suitable role model, but that is not enough to justify a care order let alone adoption. We must guard against the risk of social engineering, and that, in my judgment is what, in truth, I would be doing if I was to remove A permanently from his father’s care.”

The same concerns hold true in cases relating to adults particularly where there are safeguarding concerns.

The tone of Sir James Munby P’s approach also chimes with the key principles governing the MCA.  One principle is that a person is not to be treated as unable to make a decision merely because he makes an unwise decision. The fact that others, including the court, think that a decision is unwise or unsavoury, is an insufficient basis upon which to displace their decision. Another principle is that the best interests requirement should take into account the particular wishes and feelings of the incapacitated person, again, even where others, or the court, would not necessarily agree.

[A version of this note appeared in the March 2015 39 Essex Chambers Mental Capacity Law Newsletter]

When does the court need an expert to assist as to veracity?

Summary

in Wigan Council v M, C, P, GM, G, B and CC [2015] EWFC 8, Peter Jackson had to consider whether expert evidence was required in family proceedings in relation to (1) the capacity of a witness to give evidence and (2) the witness’s veracity.  As materially similar principles apply by analogy in COP proceedings, the conclusions reached by Peter Jackson J are equally applicable to judges of and practitioners appearing in that court.

Two children, aged 15 and 16, alleged that they had been sexually abused by their stepfather. At a case management hearing, the stepfather applied for a ‘veracity assessment’ and an assessment of the children’s ability to give evidence. The application was supported by the other parties and granted by the court.

An experienced clinical psychologist with special experience in the analysis of forensic interviews was instructed. The expert concluded that there was nothing in what the children said that required the interpretation of an expert. The children were articulate teenagers who were capable of giving evidence.

Peter Jackson J, whilst acknowledging that an assessment of capacity to give evidence, and the arrangements that should be made to assist a witness to do so fairly is a proper subject for expert advice where necessary, it is not necessary in every case. He identified three principles:

  1. As a matter of law, there is no bar on the admission of expert evidence about whether evidence is or is not likely to be true.
  2. Expert evidence can only be adduced if it is necessary to assist the court to resolve the proceedings. The fact that expert evidence is admissible and might be relevant or even helpful in a general way is not enough.
  3. Cases in which it will be necessary to seek expert evidence will nowadays be rare. Judges have been trained in and are expected to be familiar with the assessment of evidence. The court is only likely to be persuaded that it needs expert advice if it concludes that its ability to interpret the evidence might otherwise be inadequate.

Peter Jackson J also expressly agreed with what was said by Baker J in A London Borough Council v K [2009] EWHC 850 (Fam) that veracity or validity assessments have a limited role to play in family proceedings. The ultimate judge of veracity, i.e. where the truth lies, is the judge and the judge alone.

Comment

In the COP, as in the Family Court, an expert may give evidence on questions going to factual matters, such as the veracity or truthfulness of a witness but the final decision upon those matters remains for the judge. Indeed, the ultimate questions of whether P has capacity and what is in their best interests are matters for the court.

The equivalent to Part 25 of the Family Procedure Rules 2010 is COPR Part 15 accompanied by PD 15A. Pursuant to rule 121, the COP is under a specific duty to limit expert evidence to that which is “reasonably required” to resolve the proceedings. This is in contrast to s.13(6) Children and Families Act 2014, which dictates that expert evidence can only be adduced if it is necessary to assist the court to resolve the proceedings justly.  It is likely that this this change will be introduced in due course in the COP.  It would therefore be wise for COP practitioners to take heed of the three principles identified by Peter Jackson J when considering whether to seek to adduce expert evidence going to veracity.   Indeed, it is only like ever to be required where there are real doubts (for instance) as to whether a person has the mental capacity to understand the import of what they saying.  An example from the experience of the editors where this has arisen is where a person with a severe learning disability placed in a care home made allegations of sexual abuse but where there were doubts as to whether the words that they are using reflected their own experience or words that they had picked up from contact with other service users or from the media.   In that case, the assistance of an expert psychologist was undoubtedly necessary, but these cases are likely to be rare.

[A version of this note appeared in the March 2015 39 Essex Chambers Mental Capacity Law Newsletter]

Extreme Product Champions and their effect on P

In a decision from October 2014 which was only very recently placed on Bailii (and which we are very grateful for to Caroline Hurst of Switalskis for bringing to our attention), District Judge Mainwaring-Taylor made a heartfelt plea to an ‘extreme product champion’ to reflect upon the consequences of his actions.  In Re MW [2014] EWCOP B27, proceedings concerning an elderly lady, MW, had been concluded with a decision that she should continue living in a care home rather than being cared for by her son at home.   A significant factor in that decision had been the fact that he had taken, and posted on a private section of YouTube, a video of his mother in an extremely distressed state at home.

Some two years later, the matter came back to court, it appears because of the son’s continued conduct and – in particular his continued practice of videoing.    In a description that may ring bells, District Judge Mainwaring-Taylor noted that “[Mr W] is entirely convinced that in all the circumstances he is always right and he produces what he says are justifications.  Unfortunately, Mr W’s justifications really centre on his needs, rather than on his mother’s needs. I quite accept and believe that Mr W is entirely genuine in thinking and having a perception that what he is doing and wants is in his mother’s best interests, but, sadly, that is simply not the case.”

In maintaining the status quo, namely that Mrs W should continue to reside in the care home, the judge made a plea that:

“Perhaps in his future dealings and thoughts, Mr W might think that, every time he does something which provokes the need for court proceedings, he is directly diminishing his mother’s resources. Because it always seems to get to the stage where the matter has to come before the court and, as soon as that happens, Mrs W needs representation; that representation has to be through the Official Solicitor and it has to be funded. As long as Mrs W has financial resources, it will be she who funds it, rather than the monies being there for her care and comfort.”

Comment

Cases such as this (and that of A Local Authority v M & Ors [2014] EWCOP 33 and Re A and B (Costs and Delay) [2014] EWCOP 48 will no doubt be considered carefully by the ad hoc Rules Committee when in due course in the course of their deliberations as to how to seek to enshrine into the Rules mechanisms to ensure that the resources of the court – and, significantly, the resources of privately paying Ps – are deployed proportionately.

[A version of this note appeared in the March 2015 39 Essex Chambers Mental Capacity Law Newsletter]

“Neary 2,” or making Article 5(4) real

In an extremely important judgment handed down on 11 February, AJ v A Local Authority [2015] EWCOP 5, Baker J has given detailed guidance as to the heavy burden that is placed upon local authorities in making sure that those deprived of their liberty in care homes (and, by extension, hospitals) are afforded effective access to the Court of Protection so as to secure their rights under Article 5(4) ECHR.   He has also confirmed again the importance of taking appropriate steps in advance where it is clear (or should be clear) that a person will be deprived of their liberty.

For those in a hurry, Baker J gave at the conclusion a series of wider lessons, which I reproduce here, although this is no substitute either for reading the balance of this note or – more importantly – the judgment itself.

“113. First, I emphasise that the scheme of the DOLS is that, in the vast majority of cases, it should be possible to plan in advance so that a standard authorisation can be obtained before the deprivation of liberty begins. It is only in exceptional cases, where the need for the deprivation of liberty is so urgent that it is in the best interests of the person for it to begin while the application is being considered, that a standard authorisation need not be sought before the deprivation begins.

114. Secondly, professionals need to be on their guard to look out for cases where vulnerable people are admitted to residential care ostensibly for respite when the underlying plan is for a permanent placement without proper consideration as to their Article 5 rights.

115. Thirdly, a RPR should only be selected or confirmed by a BIA where he or she satisfies not only the criteria in regulation 3 of the Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative) Regulations 2008 but also the requirements of paragraph 140 of Schedule A1 of the MCA. This requires that the BIA not only checks that the facts set out in regulation 3 are satisfied but also carries out an analysis and reaches a judgment as to whether the prospective representative would, if appointed, (a) maintain contact with the relevant person; (b) represent the relevant person in matters relating to or connected with the Schedule and (c) support the relevant person in matters relating to or connected with the Schedule.

116. Fourthly, the local authority is under an obligation to satisfy itself that a person selected for appointment as RPR meets the criteria in regulation 3 and in paragraph 140 of Schedule A1. If the local authority concludes that the person selected for appointment does not meet the criteria, it should refer the matter back to the BIA. 

117. Fifthly, it is likely to be difficult for a close relative or friend who believes that it is in P’s best interests to move into residential care, and has been actively involved in arranging such a move, into a placement that involves a deprivation of liberty, to fulfil the functions of RPR, which involve making a challenge to any authorisation of that deprivation. BIAs and local authorities should therefore scrutinise very carefully the selection and appointment of RPRs in circumstances which are likely to give rise to this potential conflict of interest.

118. Sixthly, an IMCA appointed under section 39 D must act with diligence and urgency to ensure that any challenge to an authorisation under schedule A 1 is brought before the court expeditiously. Failure to do so will lead to the evaporation of P’s Article 5 rights.

119. Seventhly, the appointment of a RPR and IMCA does not absolve the local authority from responsibility for ensuring that P’s Article 5 rights are respected. The local authority must monitor whether the RPR is representing and supporting P in accordance with the duty under paragraph 140 and, if not, consider terminating his appointment on the grounds that he is no longer eligible. The local authority must make sufficient resources available to assist an IMCA and keep in touch with the IMCA to ensure that all reasonable steps are being taken to pursue P’s Article 5 rights.

120. Finally, in circumstances where a RPR and an IMCA have failed to take sufficient steps to challenge the authorisation, the local authority should consider bringing the matter before the court itself. This is likely, however, to be a last resort since in most cases P’s Article 5 rights should be protected by the combined efforts of a properly selected and appointed RPR and an IMCA carrying out their duties with appropriate expedition.”

Summary

Although the principles set down by Baker J are of general application, the particular factual context in which they arose is of some importance, not least because they represent a not uncommon state of affairs.

An elderly lady, AJ, had lived for a considerable period of time in an annexe of the home of her niece and her husband (‘Mr and Mrs C’).   She developed vascular dementia and became increasingly dependent on others, in particular Mrs C.  She was, however, very reluctant to acknowledge her condition, and insistent that she could manage without any help.   In April 2013, she signed LPAs in respect of health and welfare and property and financial affairs naming Mr and Mrs C as donees.

At around this time, AJ was referred to social services by a psychiatric nurse. When a local authority case co-ordinator visited on 22nd April 2013, Mrs C raised the possibility of respite care for AJ to prevent the breakdown of the care arrangements.   In June 2013, Mrs C made it clear that she could not continue with her caring role in its current form as she and her husband had planned a fortnight’s holiday.   She said that she now felt that permanent residential care was required.   The local authority social worker offered to find the nearest suitable home for respite while Mr. and Mrs. C were away, and duly identified a home, X House, for that purpose.  It was clear that, in fact, it was hoped that if AJ settled she could remain in the care home on a permanent basis.

On 13 June, just before they went on holiday, Mr and Mrs C took AJ to X House. Upon arrival, she stated that she did not wish to be there and repeatedly asked to leave. No assessment under Schedule A1 to the MCA 2005 had been carried out prior to her arrival but an urgent authorisation under the Schedule was granted by the manager at X House on 14 June.  The urgent authorisation recorded inter alia that AJ had been placed at the home whilst her main carers, Mr and Mrs C, went on holiday for two weeks, “with a view to [AJ] staying here on a permanent basis”. On the same day, a request was made to the local authority as the supervisory body for a standard authorisation, which was granted for a period of 21 days because of the uncertainty of the situation.

Mr C was appointed AJ’s RPR, on the basis that AJ had a donee whose under the LPA permitted them to select a family member, friend of carer to be their RPR, that the donee had selected Mr C to act in that capacity and that he was eligible to be appointed.   It was clear at this stage that Mr C supported AJ continuing to be accommodated in a care home, even though it amounted to a deprivation of her liberty.  A s.39D IMCA was also appointed, a Mr R.

At the start of July 2013, AJ was moved to Y House, and remained there thereafter, subject to repeated standard authorisations.     Despite AJ’s known opposition to living at Y House, no legal challenge was made to the standard authorisations for several months.  As Baker J noted, “[t]he reasons for this failure lie at the heart of this case” (paragraph 18).   A critical reason was the lack of effective communication between Mr C and Mr R.

When Mr R and Mr C finally spoke in November 2013 Mr R realised that Mr. C was not going to initiate proceedings and after further conversations with his manager he agreed to act as her litigation friend and instruct solicitors to make an application to the Court on her behalf.  Proceedings were eventually issued in December 2013, challenging the standard authorisation made in July 2013.    Mr R was replaced in March 2014 as AJ’s litigation friend by the Official Solicitor.  Although ultimately the substantive challenge under s.21A MCA 2005 was not actively pursued, in view of evidence as to a deterioration in AJ’s condition and behaviour, and to the fact that there was no domiciliary care agency willing to offer to provide care, the Official Solicitor (1) raised concerns as to the extent to which the care plan accurately reflected the type and degree of physical interventions being used; and (2) pursued a claim for a declaration under s.7 HRA 1998 that AJ’s rights under Article 5(1), 5(4) and 8 ECHR had been breached (but not a claim for damages).     In order to determine the claim, Baker J conducted a hearing in May 2014 at which he heard oral evidence from Mr R, Mr C and the local authority’s BIA, Ms G, and then subsequently sought (and received) extensive written submissions, inter alia, on the effect of the Re X judgment).

Restraint

As a preliminary issue, Baker J addressed the question of the use of restraint and its documentation.    It became clear that the level of physical restraint being used by carers in Y House was greater than acknowledged in the care plan (and indeed, even in an amended care plan).

As Baker J noted:

“25.  In supplemental submissions, Ms Butler-Cole on behalf of the Official Solicitor submitted that in any case in which physical restraint is used in the care of an incapacitated adult, any physical intervention, whether considered to amount to “restraint” or not, should be recorded in the care plan maintained by the service provider and monitored by the statutory body responsible for commissioning the person’s care. Furthermore, precise details of all physical interventions should be ascertained and documented as part of the Deprivation of Liberty Safeguards process or indeed any best interest assessment from direct discussion with care staff implementing the interventions.

 agree. In this case, whilst there may at one stage have been a discrepancy between the care plan and what was actually being provided, I am now satisfied that the local authority has addressed this issue in its amended plan. If, however, any further issue arises, or any party seeks any further declaration or order on this issue, the matter should be referred to me for further review.”

Article 5(4)

Baker J provided a careful and comprehensive summary of the principles to be derived from the case-law relating to Article 5(4), which merits reproduction in full

“35. In applying [the provisions of Schedule A1 to the MCA 2005], and assessing whether there was any infringement of Article 5(4) in this case, I have had regard to the case law, both European and domestic. The leading European cases are X v United Kingdom (1981) 4 EHRR 188; Winterwerp v The Netherlands (1979) 2 EHRR 387; Waite v UK [2002] ECHR 804; Shtukatarov v Russia (2008) 54 EHRR 962; Stanev v Bulgaria (2012) 55 EHRR 696, MH v UK [2013] ECHR 1008, and, most recently, Ivinovic v Croatia [2014] ECHR 964. From those authorities, the following principles can be summarised:

(1) “There is a positive obligation on the state to protect the liberty of those within its jurisdiction. Otherwise, there would be a sizeable gap in the protection from arbitrary detention, which would be inconsistent with the importance of personal liberty in a democratic society. The state is therefore obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge”: Stanev v Bulgaria at paragraph 120.

(2) The procedure required by Article 5(4) must have a judicial character and be independent of the detaining authority: X v United Kingdom, supra, para 53, MH v UK, supra, para 77(c).

(3) Article 5(4) guarantees a remedy that must be accessible to the person concerned: MH v UK, supra, para 76.

(4)  The state has an obligation to ensure that a mentally incapacitated adult is afforded independent representation, enabling them to have their Convention complaints examined before a court or other independent body: Ivinovic v Croatia, supra, para 45.

(5)  Special procedural safeguards may be called for in order to protect the interests of persons who, on account of mental disabilities, are not fully capable of acting for themselves. Where a person lacks the capacity to instruct lawyers directly, the safeguards required may include empowering or even requiring some other person to act on that person’s behalf: Winterwerp v The Netherlands, supra, para 60, MH v UK, supra, paras 77(e) and 92.

(6) Article 5(4) may not be complied with where access to a court is dependent on the exercise of discretion by a third party, rather than an automatic entitlement. Where the third party supports the deprivation of liberty, reliance on the third party to initiate proceedings may not satisfy the requirements of Article 5(4): Shtukatarov v Russia, supra, para 124.

(7) An initial period of detention may be authorised by an administrative authority as an emergency measure provided it is of short duration and the individual is able to bring judicial proceedings speedily to challenge the lawfulness of any such detention including, where appropriate, its lawful justification as an emergency measure: MH v UK, supra, para 77(a).

(8)  The likelihood of the judicial hearing leading to release from detention is irrelevant. Article 5(4) is first and foremost a guarantee of a fair procedure for reviewing the lawfulness of detention – an applicant is not required, as a precondition of enjoying that protection, to show that on the facts of his case he stands any particular chance of success in obtaining his release: Waite v UK, supra, para 59.

36. In domestic law, the fundamental principle to be applied by the Court of Protection in cases of deprivation of liberty was summarised by Peter Jackson J in Neary v LB of Hillingdon [2011] EWHC 1377 (COP) at para 202:

‘… there is an obligation on the State to ensure that a person deprived of liberty is not only entitled but enabled to have the lawfulness of his detention reviewed speedily by a court.”

Baker J noted the “guidance” given by the President in Re X as to the question of whether P needed to be joined as a party to proceedings for judicial authorisation for deprivation of liberty, and, in particular, paragraph 19, the conclusions of the President as to Article 5(4) as regards the requirements of “representation” if P is not to be a party to proceedings.   [This paragraph will be the subject of intense scrutiny on 17-8 February before the Court of Appeal].

Initial authorisation

Baker J found that it was clear that Mr and Mrs C were clearly saying before they went on holiday that they could not continue to care for AJ and that a move to permanent residential care was required.

Therefore:

“47.  As it was clear that AJ would not go willingly to X House, and that such a move would only be achieved by depriving her of her liberty, the local authority, prior to that move taking place, ought to have either carried out a DOLS assessment or made an application to the Court. During the first few days of her stay at X House, there was no authorisation in place, nor was there an RPR or an IMCA appointed to support her. The fact that the first two weeks of her stay at X House were nominally labelled as “respite” care cannot justify the local authority’s failure either to instigate the DOLS process or apply to the court. The local authority plainly knew that Mr. and Mrs. C would not agree to AJ returning home at the end of their holiday and that, whatever may have been said about respite care, the move was intended to be permanent from the outset.

48. In this case, the local authority had sufficient time to commence the process of authorisation. This case therefore fell within the ‘vast majority of cases’ in which, as Chapter 3 of the Code of Practice recognises, “it should be possible to plan in advance so that a standard authorisation can be obtained before the deprivation of liberty begins”. Given the scheme of the Act is that urgent authorisations are expected to last for no more seven days save in exceptional circumstances, the local authority ought to have been able to complete the process of assessment and grant of a standard authorisation before AJ arrived at X House on 13th June. In the alternative, given the fact that AJ’s objections to being placed in residential care were clear and well-known, the local authority could have applied straight to the Court of Protection without going through the authorisation procedure under Schedule A1. As Keehan J observed in NHS Trusts 1 and 2 v FG [2014] EWCOP 30 at paragraph 101(iii), ‘the mere fact that a deprivation of liberty could be authorised under Schedule A1 does not absolve [the authority] from making an application to the court where the facts would otherwise merit it.’”

Importantly, this failure meant that there was no proper analysis of alternative options for AJ’s care, nor was she afforded any opportunity to have her views considered, before the move to X House occurred.   Baker J also found that it was irrelevant that the initial move took place, as an measure of interim support, not on the basis of s.21 National Assistance Act 1948, but rather under the statutory duties imposed by s.47(5) of the National Health Service and Community Care Act 1990. As he noted at paragraph 50: “[the consequence of the decision was that she, an incapacitated adult, was thereby deprived of her liberty. The local authority was therefore under an obligation to comply with Article 5 and it was unlawful under s.6 of the Human Rights Act 1998 for the authority to act in a way that was incompatible with AJ’s rights under that Article.”

Baker J therefore found at paragraph 51 that there had been:

 “a clear breach of the principles identified in the European and domestic case law. As the European Court made clear in Stanev v Bulgaria, supra, the state is obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge. In this case, the local authority was in breach of that obligation by failing either to instigate the standard authorisation procedure under Schedule A1 or alternatively apply direct to the Court of Protection in advance of AJ’s admission to X House.”

The RPR

The core of the Official Solicitor’s case on behalf of AJ was that the local authority not to have appointed Mr C to act as RPR at all, or at least not without ensuring that he would bring proceedings under s.21A in the light of AJ’s known objections, or alternatively, having appointed him, replaced him when it became apparent that he was not going to facilitate a speedy review of her detention.

 After a detailed analysis of the (inordinately) complicated statutory provisions, Baker J concluded that Mr C was not eligible to be AJ’s RPR because:

1.  A person is only eligible to be an RPR if they will, as part of supporting the relevant person, take appropriate steps to support the person to challenge any authorisation granted under Schedule A1 (paragraph 82).   This construction of paragraphs 140(a) and (b) of Schedule A1 was supported, Baker J, noted by the Strasbourg case-law, in particular the case of Shtukatarov v Russia.

2. The evidence “manifestly demonstrate[d] that Mr. C was unwilling or at least very reluctant to represent or support AJ in challenging the authorisation because he and his wife had concluded that they could no longer safely look after her at home and he believed that it was in her best interests to live in residential care” (paragraph 84).  As Baker J noted, Mr C had immediately noted that he had a conflict of interest, and raised it with Ms G.  Ms G’s response had been to arrange for the appointment of an IMCA, but “the appointment of an IMCA cannot overcome the ineligibility of the RPR” (paragraph 84).

3.  Further, at paragraph 86, Baker J accepted the Official Solicitor’s submission that:

“the local authority ought not to have appointed Mr. C as RPR notwithstanding the fact that he was selected by the BIA. The European and domestic case law make it clear that there is a positive duty on public authorities under the Convention to ensure that a person deprived of liberty is not only entitled but enabled to have the lawfulness of his detention reviewed speedily by a court, to ensure that a mentally incapacitated adult is afforded independent representation, enabling them to have their Convention complaints examined before a court or other independent body, and not to permit access to a court to be dependent on the exercise of discretion by a third party who supports the deprivation of liberty. As the President has made clear in of Re X and Others (Deprivation of Liberty) [2014], it is not always necessary for P to be joined as a party to any proceedings, but the state is under a clear duty to ensure that he or she is able to challenge a deprivation of liberty in a process that is judicial, accessible and independent of the detaining authority. To my mind, these obligations impose on the local authority as supervisory body a duty to scrutinise the prospective RPR selected under regulations 5 to 8 before making the appointment. I do not accept Mr. Dooley’s submission that it was not open to the local authority as supervisory body to refuse to appoint Mr. C as RPR. The fact that, under regulation 11, a supervisory body may not (except where regulation 9 applies) appoint a RPR unless the person is recommended by a BIA under regulation 7 or 8 does not mean that it is obliged to appoint a person who is so recommended. Where a supervisory body has reason to believe that the person selected as RPR will not comply with the obligations under paragraph 140 of the Schedule, its duties under Article 5 compel it to refer the matter back to the BIA.

4.  Having (wrongly) appointed Mr C as RPR, the local authority as the supervisory body ought to have quickly realised (1) that AJ was extremely unhappy in residential care and wished to challenge the authorisations and (2) that Mr C was not taking any or any sufficient steps to represent or support her in pursuing that challenge. “The local authority should therefore have taken steps to replace Mr C as RPR when it became apparent that he was not intending to issue proceedings promptly and that there was not going to be a speedy review of AJ’s detention by a court, since s.21A proceedings must be brought very promptly to ensure compliance with Article 5(4)” (paragraph 90).

IMCA

Baker J was called to determine a number of questions in relation to the provisions relating to s.39D IMCAs.  In summary form, he concluded that:

1.  The functions of a section 39D IMCA are as set out in that section, as supplemented by Schedule A1, and concern matters relating to the deprivation of liberty provisions under the Schedule. An IMCA appointed under section 39D does not have a broader, general role of representing or supporting P, and is not under a general duty to assist in determining what is in P’s best interests but, rather, to perform the specific functions set out in section 39D(7), (8) and (9) [i.e. in very broad terms, supporting the RPR and the relevant person to understand matters relating to the authorisation and helping them exercise their rights to apply to court or for a Part 8 review] (see paragraph 108);

2. Where P has executed a LPA, the duty to appoint an IMCA under section 39D is not excluded under section 40(1)(b) unless the donee of the LPA is authorised to make decisions in relation to the matters in section 39D(7) and (8) (paragraph 112);

3. Standard health and welfare LPAs do not grant authority to the donee to make decisions relating to matters to which the duty to appoint an IMCA under section 39D(2) relates (paragraphs 115-6);

4. The fact of the grant of a standard health and welfare LPA will not therefore relieve a local authority of its duty to appoint a s.39D IMCA if any of the three cases in 39D(3),(4) or (5) arise [i.e. the relevant person or their RPR request one or the local authority consider the appointment of one is – in essence – necessary to ensure the person’s rights are secured] (paragraph 116).

On the facts of the case, therefore, he concluded that, in fact, a s.39D IMCA had to be appointed.

Very importantly, Baker J found that the fact of the appointment of the s.39D IMCA did not absolve the local authority of further responsibility:

“125. The principal errors committed by the local authority in this case were, as analysed above, the failure to initiate the authorization process prior to the 13th June 2013 and wrongly appointing Mr. C to act as RPR. In my judgment, however, the local authority’s obligations did not stop there. The local authority thought that it would be meeting its obligations by appointing an IMCA and making resources available to assist the IMCA to act as litigation friend. As set out above, the appointment of an IMCA under section 39D was entirely appropriate and, although Mr. C was uncertain about how to take matters forward, I accept the local authority’s case that resources were in fact available, for example to assist an IMCA acting as litigation friend. In most cases, that would in all probability have been sufficient. In this case, however, the local authority knew that Mr. C was unwilling or at least very reluctant to represent or support AJ in challenging the authorisation because he and his wife had concluded that they could no longer safely look after her at home and he believed that it was in her best interests to live in residential care. In those circumstances, I find that the appointment of Mr. R and the provision of resources to assist him in his role as IMCA did not absolve the local authority from its continuing obligation to ensure that AJ’s rights under Article 5(4) were respected. The local authority knew at all times that AJ did not wish to be in X House or Y House. In those circumstances, I consider that the local authority, in addition to monitoring the actions of Mr. C as RPR and taking steps to replace him if appropriate, should have made enquiries as to why the IMCA was not taking steps to ensure that the right to apply to the court was being exercised.”(emphasis added)

Baker J emphasised that – as a last resort – the local authority should have considered bringing proceedings before the court itself.   This was “[p]lainly this is a last resort, because of the comprehensive and complex provisions for the selection and appointment of RPRs and the appointment of IMCAs are followed, and if RPRs and IMCAs appointed under these provisions carry out their responsibilities as they should, the rights of an incapacitated person to challenge a deprivation of liberty normally will be protected” (paragraph 126).

However, the local authority “remained under a continuing and positive obligation to “ensure that AJ’s Article 5(4) rights were respected. Thus, if it was not satisfied that the IMCA was taking the necessary steps to apply to the court, and if in all the circumstances it considered such a course to be appropriate, it should have brought court proceedings itself.” (paragraph 126, emphasis added).

Conclusion

Baker J found that the case told a sorry tale of a series of failures by a number of people to ensure that the procedures designed to ensure that AJ’s rights under Article 5 were respected, for which ultimate responsibility lay with the local authority.   He therefore granted the declarations sought by the Official Solicitor.

Wider practice

As set out above, Baker J then pulled the threads together to give wider guidance for practitioners.

Comment

Whilst much of the judgment concerned extremely technical interpretation of the provisions of the MCA and the relevant secondary legislation (much of which strongly suggests that the whole regime is beyond repair as a statutory mechanism), it is, at heart, a vitally important assertion of the importance of public bodies taking appropriate steps:

  • To recognise when apparently beneficent steps will lead to a deprivation of liberty;
  • To be honest about what exactly those steps will be;
  • To pause before taking those steps to check whether, in fact, they are necessary or whether a less restrictive option can be pursued;
  • If they are necessary, to ensure – wherever possible – that the necessary authority is in place before they are taken;
  • To recognise the continuing and positive obligation imposed upon local authorities to ensure that those subject to standard authorisations are afforded an effective right to challenge their detention before the Court of Protection.

The case is also a clear recognition of the ‘hard-edged’ nature of rights under Articles 5(1) and 5(4).   It is clear that Mr C thought that he was acting in AJ’s best interests, and that, as a family member, he had a more complete and rounded picture of the circumstances than an RPR who had only met AJ on a limited number of occasions.   However, through a truly Lemony Snicket series of events, her family members and the local authority ended up inadvertently conspiring to preclude her raising her fundamental objections to being “dumped” (as her friends perceived it) in a care home.

The final point relates to the preliminary point determined by Baker J in relation to the need for honesty in care plans as to exactly what level of restraint is being imposed upon an individual.  This point is equally, if not more, important in relation to those in respect of whom Re X applications are being made –where, as matters currently stand, the court will only have the applicant’s word for what is going on…

[footnote – for further excellent comment on the case which arrived as I was writing this, see Lucy Series’ post here]