Tag: Court of Protection Rules

Transparency and position statements

Practitioners should note the judgment of Poole J in Re AB (Disclosure of Position Statements) EWCOP 25 (T3). In summary, Poole J has ruled that position statements are documents “put before” the Court within the terms of the usual Transparency order and are also documents “in the court records” for the purpose of rule 5.9 Court of Protection Rules 2017 (COPR). The key guidance for practitioners appears at paragraph 36 of the judgment and is set out below (emphasis added):

1. Position statements are documents “put before” the Court within the terms of the Court of Protection template Transparency Order. They also become documents within the court record once filed and they are filed once sent to the court listing office or a judge’s clerk or court clerk.

2. Parties preparing position statements should foresee that an observer at an attended hearing in public might request an electronic or hard copy and should therefore prepare suitably anonymised position statements which comply with the Transparency Order. I also suggest that it would be helpful to include a warning on the front sheet of the position statement – a rubric similar to that which appears on published judgments, namely that “there is a Transparency Order in force and that irrespective of what appears in the position statement, the Transparency Order must be strictly complied with. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.“

3. An observer does not have an automatic right to see position statements, whether they are being used in a hearing they are to observe or have been used at a hearing they have previously observed. A change in the court rules and/or relevant practice direction (or to the standard Transparency Order referred to in the practice direction) would be required to create such a right.

4. If an observer wants to see a party’s position statement they should ask the party in advance of the hearing and state their reason. If they cannot contact a party in advance of the hearing (whether at court or otherwise) they may make the request (with reasons) to the court and that request can be passed on to the party or their representatives.

5. When a hearing is in public and a Transparency Order has been made, a party is free to provide a position statement to an observer attending a hearing without requiring a Court direction provided that (i) the position statement does not include the information protected by the Transparency Order and (ii) the observer has been provided with a copy of the Transparency Order so that they are bound by it.

6. At a hearing in public, a party must ask the Court for permission to provide a position statement to an observer who has requested it if the document does include the information protected by the Transparency Order, provided that the party is otherwise content to provide it. The Court can then allow a variation of the Transparency Order to allow for the provision of that non-anonymised position statement to that observer at that hearing, if the Court considers that an appropriate step to take without hearing further submissions. That variation should be recorded in the subsequent court order. To re-iterate, the order would be a variation of the Transparency Order for the purposes of a specific hearing and on request of the party or legal representative who would otherwise be in breach of the Transparency Order by providing the position statement to an observer.

7. If a party refuses to provide a position statement to an observer on request, the observer may apply to the Court for a direction, as provided for by the standard terms of the template Transparency Order, that they be provided with a copy on such terms as the Court considers fit.

8. Such an application need not be made formally under the procedure in COP Rules Part 10. There is insufficient time to allow for a formal written application to be made and the Transparency Order allows for its variation to be made of the court’s own motion or on application with no requirement for such an application to be made in writing. That is a much more suitable process for a request by an observer at a hearing. The application may be made orally to the Court at the outset of the hearing.

9. The Court will hear submissions by the observer as to how access to the position statement will advance the open justice principle, for example by allowing them to follow the case. If needed, the Court will then hear submissions from the party refusing to provide its position statement as to countervailing factors such as the risk of harm or proportionality. The observer may respond and the Court will give a short ruling and allow the application on such terms as it thinks fit, or refuse it. Dring will be applied.

10. If, after a hearing has concluded, a non-party – whether or not they observed the hearing – requests to be provide with a position statement that was used at the hearing, then they should make a Part 10 application under r5.9(2). That process must be adopted because the application should be on notice with an opportunity for the party concerned to respond. The applicant observer will need to make out a case in support of their application. The hearing having concluded, the more immediate, less formal process outlined above will no longer be appropriate. Again Dring will be applied (and see In re HMP below)

    This should provide clarity to judges, practitioners and observers. Those drafting position statements from now on are strongly advised to include the wording suggested by the judge on the face of the position statement.

    Article 5 and representation….again

    In Re PQ (Court Authorised DOL: Representation during Review Period) [2024] EWCOP 41, a local authority argued unsuccessfully that Article 5 did not require a rule 1.2 representative to be appointed during the review period, when the court had made best interests decisions for PQ and authorised care arrangements giving rise to a deprivation of liberty, which was to be reviewed in 12 months.  The court (perhaps unsurprisingly) rejected this submission having regard to the clear findings of Charles J in Re NRA [2015] EWCOP 59 and Re JM [2016] EWCOP 15, and given PQ’s specific circumstances.   The court did not however rule out the possibility that “in some cases” compliance with Article 5(4) may not require the appointment of a litigation friend or representative.

    Had there been an available rule 1.2 representative PQ could have been discharged as a party.  However, in this case, no rule 1.2 representative was available.

    The judge was aware that legal aid funding depended on an oral hearing being listed or likely to be listed[1], but was not willing to list what could be an unnecessary hearing as a device to secure legal aid.   The judge refused to discharge the Official Solicitor as litigation friend and directed her to provide the level of representation to fulfil a role similar to an RPR or rule 1.2 representative.   The judge was aware from an email from a Legal Aid Agency (LAA) Caseworker that legal aid funding would not normally keep a certificate open during a review period. In the event that funding was withdrawn, there would be a further hearing and the following directions would apply:

    • A full explanation from the LAA of the decision not to fund representation;
    • The LAA would be requested to secure ongoing funding pending determination by the court of PQ’s representation;
    • The local authority was to review its decision not to fund a rule 1.2 representative and provide a written explanation if it decided not to fund.
    • The Secretary of State for Justice would be joined as a party and required to provide evidence as to the provision of funds for a professional 1.2 representative.

    The judge directed that the judgment is provided to the Legal Aid Agency and Secretary of State for Justice with a request they consider the implications.

    Comment:

    • Whilst Poole J did not rule out that representation (either a litigation friend or rule 1.2 representative) might not always be required to comply with Article 5(4), it should be borne in mind that Charles J heard detailed argument over the issue in Re NRA, Re JM and later Re KT [2018 EWCOP 1] from several local authorities, and the Secretaries of State for Health and for Justice who were joined as parties[2].  He reached clear and reasoned view that the minimum procedural requirements of Article 5 and the common law requires “some assistance from someone on the ground who considers the care package through P’s eyes and so provides the independent evidence to the COP that a family member or friend can provide”.   
    • Sadly this case reminds readers of the perverse incentives that continue to permeate funding decisions in this area of law.  As Poole J pointed out, in the end the states pays, and the solution he felt compelled to adopt means the state is likely to pay more than it should do.

    [1] Regulation 52, Civil Legal Aid (Merits) regulations 2013, although this does not appear to have been cited to the judge

    [2] Poole J describes Charles J’s efforts to find a practical solution as “Herculean”- see paragraph 32.

    Fees increase in the Court of Protection

    With effect from 1 May 2024, the fee for making an application in the Court of Protection will rise from £371 to £408, and the appeal fee from £234 to £257.

    The Court and Tribunal Fees (Miscellaneous Amendments) Order 2024 also corrects some errors, including in the Court of Protection Fees Order 2007.  As the Explanatory Memorandum notes:

    Paragraph 14(3)(b) in Schedule 2 to the Court of Protection Fees Order 2007 deals with the calculation of a party’s disposable capital and gross monthly income for the purposes of calculating entitlement to fee remissions. Mistakenly, paragraph 14(3)(b) fails to specify that the gross monthly income of ‘P’ (the protected party) is to be treated as the gross monthly income of the party, in proceedings brought concerning the property and affairs of a P. This amendment will correct this oversight.

    CoP Rules 2017 come into force tomorrow

    Remember that 1 December sees the coming into force of the new look CoP Rules and accompanying Practice Directions. All of these can be found most easily on the Court of Protection Handbook website here, together with a handy destination table to show where the old Rules have gone. The changes and their background are discussed in the November 39 Essex Chambers Mental Capacity Report here.

    CoP Handbook 2017 Rules Changes supplement/revised second edition

    cof

    The revised second edition of the Court of Protection Handbook is now out, including an update on key developments over the past year, and a copy of the new Court of Protection Rules 2017.   Those kindly people at Legal Action Group have also prepared a supplement with the update and the Rules.  This will be sent out automatically (for free) to people who bought the second edition directly from LAG but can be requested (by email to lag@lag.org.uk) for free by those who bought from other outlets.  It can also be found as a PDF here, and will shortly be available (again for free) as an eBook from Amazon.

     

    New PDs now published (and one that hasn’t been)

    Accompanying the new Rules to come into effect on 1 December 2017 (assuming Parliamentary approval), a new suite of Practice Directions will also be brought into force.  A table is set out below, and the PDs can all be found here.

    For the most part, the substance of the Practice Directions is the same as that contained in the existing ones, although recast to reflect the renumbering in the Rules.  Important points to note are:

    1. Practice Direction 3B, consolidating into the practice of the Court the case management pilot approach to case pathways

    2. Practice Direction 4C, consolidating the transparency pilot into the practice of the Court

    3.  Practice Direction 17C, consolidating the s.17 pilot approach

    4.  Practice Direction 24C, providing for transition arrangements in the following terms

    Applications received after commencement

    2. If an application under the Previous Rules or the pilot Practice Directions is received at the court on or after commencement [i.e. 1 December], it will be returned.

    3. However, an application made under the Rules using the version of the relevant form which was current immediately before commencement will be accepted until close of business on 12 January 2018, or such later date as the Senior Judge may direct.

    Applications received before commencement

    4. The general presumption will be that any step in proceedings which were started (in accordance with rule 62 of the Previous Rules) before commencement which is to be taken on or after commencement is to be taken under the Rules.

    (Rule 62 of the Previous Rules provides that proceedings are started when the court issues an application form at the request of the applicant.)

    5. However, the general presumption is subject to any directions given by the court, which may at any time direct how the Rules are to apply to the proceedings.

    6. Any step already taken in the proceedings before commencement in accordance with the Previous Rules or the pilot Practice Directions will remain valid on or after commencement.

    Orders made before commencement

    7. Where a court order has been made before commencement under the Previous Rules or the pilot Practice Directions, the order must still be complied with on or after commencement.

    Finally, it should be noted that Practice Direction 9E, concerning serious medical treatment, is not carried over into these new provisions, so that it will fall away on 1 December 2017. At time of writing no replacement has been proposed.

     
    Practice Direction 1A – Participation of P
    Practice Direction 2A – Levels of judiciary
    Practice Direction 2B – Authorised court officers
    Practice Direction 2C – Application of the Civil Procedure Rules 1998 and the Family Procedure Rules 2010
    Practice Direction 3A – Court’s jurisdiction to be exercised by certain judges
    Practice Direction 3B – Case pathways
    Practice Direction 4A – Hearings (including reporting restrictions)
    Practice Direction 4B – Court bundles
    Practice Direction 4C – Transparency
    Practice Direction 5A – Court documents
    Practice Direction 5B – Statements of truth
    Practice Direction 6A – Service of documents
    Practice Direction 6B – Service out of the jurisdiction
    Practice Direction 7A – Notifying P
    Practice Direction 8A – Permission
    Practice Direction 9A – The application form
    Practice Direction 9B – Notification of other persons that an application form has been issued
    Practice Direction 9C – Responding to an application
    Practice Direction 9D – Applications by currently appointed deputies, attorneys and donees in relation to P’s property and affairs
    Practice Direction 9E – Applications relating to statutory wills, codicils, settlements and other dealings with P’s property
    Practice Direction 9F – Applications to appoint or discharge a trustee
    Practice Direction 9G – Applications relating to the registration of enduring powers of attorney
    Practice Direction 10A – Applications within proceedings
    Practice Direction 10B – Urgent and interim applications
    Practice Direction 11A – Deprivation of liberty applications
    Practice Direction 12A – Human Rights Act 1998
    Practice Direction 13A – Procedure for disputing the court’s jurisdiction
    Practice Direction 14A – Written evidence
    Practice Direction 14B – Depositions
    Practice Direction 14C – Fees for examiners of the court
    Practice Direction 14D – Witness summons
    Practice Direction 14E – Section 49 reports
    Practice Direction 15A – Expert evidence
    Practice Direction 17A – Litigation friend
    Practice Direction 17B – Rule 1.2 representatives
    Practice Direction 18A – Change of solicitor
    Practice Direction 19A – Costs
    Practice Direction 19B – Fixed costs in the Court of Protection
    Practice Direction 20A – Appeals
    Practice Direction 20B – Allocation of appeals
    Practice Direction 21A – Contempt of court
    Practice Direction 22A – Civil restraint orders
    Practice Direction 23A – International protection of adults
    Practice Direction 24A – Request for directions where notice of objection prevents Public Guardian from registering enduring power of attorney
    Practice Direction 24B – Where P ceases to lack capacity or dies
    Practice Direction 24C – Transitional provisions

    Court of Protection Rules 2017

    The Court of Protection Rules 2017 have been laid before Parliament, to come into force on 1 December.  These recast all of the Rules into the same format as the Civil Procedure and Family Procedure Rules. The new-look Court of Protection Rules will also incorporate those rules relating to case management which have, since September 2016, been implemented by way of the Case Management Pilot.  Accompanying – renumbered – Practice Directions (not yet published) will also cement into the practice of the Court the Transparency Pilot and the Section 49 Report Pilot.

    LAG will shortly be publishing a revised second edition of the CoP Handbook and supplement with the new Rules and an introductory text outlining key changes since the publication of the second edition.

    Re X- the never-ending story.

    Re NRA

     

    Charles J has today (25 September) handed down the judgment in Re NRA [2015] EWCOP 59, sometimes described as Re X (2).

     

    Summary

     

    The case concerned welfare orders sought in respect of ten individuals whose care arrangements involved deprivation of their liberty. He described it as part of the “fall out” from the majority judgment in P v Cheshire West.

     

    The case considered the procedural safeguards needed and at the heart of the case was the question as to whether P should be joined as a party. The Re X litigation had thrown up contradictory obiter views in respect of applications (which were referred to as “judicial detention” cases) that were seen as uncontentious. The President of the Court of Protection had delivered two judgments (Re X (1) and Re X (2)). The Court of Appeal judgment had concluded that the initial Re X judgments had been ultra vires. Therefore the Court of Appeal did not have jurisdiction to consider the appeal, but had strongly indicated what they would have done had they been able to do so, and all three judges considered that P should be a party.   The Court of Appeal had not considered ancillary issues such as, if P is always a party, who should act as litigation friend and whether there should be an oral hearing.

     

    The cases were described as examples of “benevolent” arrangements that “many find difficult to characterize as a deprivation of liberty” (taken from the comments of Baroness Hale at para 10 in P v Cheshire West).

     

    Charles J noted that in Cheshire West Baroness Hale referred to the need for “periodic checks” and suggested that these should not be stigmatizing. He cast doubt on whether this reflected the experience of family carers and noted that any simplified solution should recognize the central role of families and carers [para 12].

     

    His approach was to consider what was required to satisfy requirements of common law and Convention rights, which he grouped under the heading “the safeguards” [para 24] and then what procedural steps would satisfy these in a practical effective and speedy way in cases of deprivation of liberty. Identifying the Safeguards entailed considering alternative ways of guaranteeing procedural fairness (“the requirements”) and whether these were likely to work (“the Effects”) [para 25].

     

    Charles J acknowledged that the instinctive reaction of lawyers in England and wales would be that P should be a party in all cases in the Court of Protection because he will be affected and bound by them [para 34]; but that consideration of the fact that the overwhelming majority of cases relate to property and affairs and are uncontentious indicates that fairness does not always require this. He applied to the Court of Protection the comment in Re R (Care; Disclosure; Nature of Proceedings) [2002] 1 FLR 755 that family cases have both adversarial and investigatory aspects [para 36]. The requirements of fairness will be different depending on whether a case is or is not contentious. An independent check on each of the property and affairs cases – and deputyship applications- would be disproportionate; hence the presumption that P need not be a party in such cases.

     

    The purpose of ss5 and 6 MCA was again to allow day to day decisions to be made by those involved in caring for P [para 40]. The test for such interventions (ie, is the intervention the least restrictive and in P’s best interests) is not different in substance from the test to be applied in Article 5 cases [para 41].

     

    Moreover some adults with capacity are objectively deprived of their liberty by their care packages but have no alternative but to accept this as they lack the resources to bring judicial review proceedings [para 42].

     

    Charles J accepted that a balance needed to be struck in order to acknowledge the risk that an apparently uncontentious package in P’s best interests may not in fact be either; and acknowledged the advantage for P of an outside check [para 44].

     

    In many cases the appointment of a family member or friend, or the Official Solicitor will add little value other than to confirm the accuracy of information provided (and in some cases to uncover inaccuracies) [para 51].

     

    Reviewing the statutory scheme under the MCA and DOLS Charles J noted that the Court does not determine whether P should or should not be deprived of his liberty but makes a determination of his best interests the corollary of which may be a deprivation of his liberty and thus require additional safeguards eg reviews and whether P should be a party [para 73]. The existence of a deprivation of liberty may further have relevance to the question of damages for breach of Article 5.

     

    Although the Official Solicitor had agreed to accept an appointment to act under specific funding arrangements in 8 of the 10 cases (whereby some solicitors had agreed to carry out some preliminary work pro bono) the Official Solicitor had indicated that he would reach saturation point in the future absent additional funding.

     

    Under the heading “legal aid” Charles J noted that the Lord Chancellor had been reviewing the impact of Cheshire West and the House of Lords recommendations to end the disparity between those detained under DOLS and those detained under the MCA for some time [para 95]. He noted that full representation would only be granted if there was to be or was likely to be a hearing [99 onwards] and rejected the suggestion that an oral hearing was always necessary and should not be listed simply to access legal representation.

     

    He took the view that legal help would not be available once proceedings were issued and P was represented by a litigation friend [91] and even if this were incorrect the means requirements precluded this as a source of funding in most cases.

     

    He concluded (correctly) that legal aid will only be a solution if the case proves contentious and requires a hearing.

     

    He did not agree that a rule 3A representative would resolve the issue [116] as this did not provide P with the status of a party. He rejected the Law Society’s submission that an ALR could never be appointed in a case involving deprivation of liberty [117].

     

    He noted the impact on resources of the Court of Protection of the joinder of P in all cases, as well as on the resources of litigation friends [124].

     

    He concluded that a litigation friend need not always act through a solicitor. A litigation friend is not a party [143]. In comments which emphasise the rapprochement between the Court of Protection and the Mental Health Tribunal worlds, he referred to his judgment in YA v CNWL, where he likened the role of the appointed representative under TPR 11(7)(b) to a litigation friend who may sometimes have to over-ride P’s wishes. He returns to this analogy when considering the role of the RPR.

     

    At paragraphs 158 onwards Charles J considered the availability of family or friends as potential litigation friends to P. This can be replete with difficulties where there is family conflict (as in Re UF) or a dissonance between the views of P and of his family (as in Re AJ).

     

    In a comment which sits uncomfortably with the judgement of Baker J in Re AJ, Charles J does not agree that the RPR should challenge a standard authorization whenever P objects; but instead should decide whether to issue at all and then should only advance arguable points (again analogous to his views about the role of the Tribunal representative in YA): para 171-2.

     

    Part 3 of the judgment contains the discussion on the question whether the Requirements and the Effects mean that P must be a party to ALL applications for welfare orders seeking a deprivation of liberty. He concludes that the answer is “no” and that he prefers the obiter reasoning of the President to the Court of Appeal: para 177.

     

    This is because:

     

    • what fairness requires will depend on the context [para 187] where Charles J noted that in para 57 of the judgment in Winterwerp the court concluded that an Article 5(4) compliant process must “have a judicial character and gives the individual concerned guarantees appropriate to the kind of detention in question” [para 187 (iii)].
    • The comments in RP vUK about the margin of appreciation, which takes into account “all relevant factors” including the nature and complexity of the issue and what was at stake for P” [para 187 (v)].

    He acknowledged the need to protect “the very essence” of Article 5 rights which will vary with each case [para 190].

     

    The heart of the judgment is Charles J’s conclusions as to the “essence” of the rights guaranteed by Article 5.

     

    These are set out below:

    “The combination of the requirements of Article 5(1) and 5(4) to the initial decision making and the challenge of the decision made (see paragraph 182 above) shows that, when in reliance of Article 5(1)(e) there is or is going to be an objective deprivation of liberty, the essence of Article 5 is to provide safeguards that put a person who lacks the relevant capacity in a sufficiently equivalent position to a person who has that capacity and so who could himself:

    1. consider, test and decide between competing provisions for his care or treatment,
    2. consent to one of them, and
    • keep under review and challenge the arrangements put in place.

    This gives rise to the need for a process that is directed to ensuring that the steps referred to in paragraph 164 (i) to (iii) above are adequately carried out or that their subject matter is adequately investigated by the court. Namely:

    • the elicitation and communication to the court of P’s wishes and feelings and the matters referred to in s. 4(6) of the MCA without causing P any or any unnecessary distress,
    • the critical examination from the perspective of P’s best interests, and with a detailed knowledge of P, the pros and cons of a care package, and whether it is the least restrictive available option, and
    • the review of the implementation of the care package and changes in P’s behaviour or health.

    and in his view require

     

    • elicitation of P’s wishes and feelings and the matters referred to in s4(6) MCA “without causing P any or any unnecessary distress”;
    • critical examination of the pros and cons of the care plan from the perspective of P’s best interests and in the context of the least restructive alternative and
    • the review of its implementation and changes in P’s behaviour and health.”

     

    The minimum standards required of procedural safeguards will vary from case to case and within the exceptions to Article 5, and within the issues which arise in each case [para 193]. He considers this consistent with Baroness Hale’s comments about the possibility of simplifying the safeguards in Cheshire West [para 195] which support the proposition that the COP rules can be applied flexibly.

     

    Under the heading “Flaws and gaps in the reasoning of the Court of Appeal” [para 197 onwards] he criticizes the reasoning of Black LJ for treating “all deprivations of liberty as being effectively the same for the purpose of the application of the procedural safeguards” [para 205]. He distinguishes cases where deprivation of liberty is authorized purely because of P’s best interests from secure accommodation cases relating to children and these involve factors other than the paramountcy principle (such as risk to others, which also features in decisions to detain under the MHA); and this is relevant to the minimum standards question.

     

    Nor does the Court of Appeal recognize that the relevant comparator is with an adult with capacity who consents to the deprivation of liberty because this is the role of the court under s16 (circular!- possibly an argument for reduced safeguards on review).

     

     

    At para 215 Charles J refers to his conclusion in YA at paras 39-41 that legal representation is not a minimum requirement in all cases. He considered that in many cases family members will be best placed to act as litigation friends and provides examples from the 10 cases before him.[219-224].

     

    At paragraphs 223- 229 Charles J considers the information provided in the streamlined procedure and how this could be improved. He recommends additional information, such as- importantly- details of when supervision is provided; use of sedation or assistive technology; what would happen if P tried to leave, and statements from those providing care to P [225].

     

    He suggested that information should also be provided about any tenancy agreement; the participation of family and friends; and why it is considered that the case can be dealt with on the papers.

     

    As litigation friends do not need to instruct solicitors; and as a hearing is not needed in all cases, there is very little benefit in making P a party and appointing a family member as a litigation friend rather than as a Rule 3A representative and where this is an available option this will provide P with the requisite safeguards [231-2]. There should be a direction to keep the care package under review. He considers that this can reliably secure P’s participation without making P a party and thus falls within the exceptions to the need for party status identified by Black LJ in the Re X judgment.

     

    Where there is not a family member or friend who can be appointed this should not require joinder of P but instead the court should consider the use of s49 reports and summonses; and the “much better solution” of the Secretary of State for justice of appointing “Rule 3A representatives identified by the local authority”. He urged the Secretary of State and local authorities to consider “urgently” how this solution can be provided on the ground and recognized that it this not available this will need to be addressed [265-7].

     

    He expresses the view that his conclusions do not discriminate for the purposes of Article 14 [para 268].

     

    His conclusions are summarized in 269:

     

    “A brief summary of my conclusions is that:

    • P does not have to be a party to all applications for welfare orders sought to authorise, and which when they are made will authorise, a deprivation of P’s liberty caused by the implementation of the care package on which the welfare order is based.
    • In two of the test cases before me I have made orders that reflect that conclusion and my conclusion that the procedural safeguards required by Article 5 are (and are best) provided in those cases by appointing a parent of P as P’s Rule 3A representative. As such, that parent as a continuation of the dedicated and devoted support given by P’s family to P and directed to promoting P’s best interests, in a balanced way, can best provide (a) the court with the information it requires about the care package and P, and (b) P’s participation in the proceedings. Also, that parent can and in my view will monitor the implementation of the care plan and so initiate any challenge to it or review of it that the parent considers should be made in P’s best interests.
    • I do not have a test case before me in which (a) P has not been joined as a party and the Official Solicitor has not agreed to act as P’s litigation friend, and (b) the appointment of a family member or friend as P’s Rule 3A representative without joining P as a party is not an available option. Such a test case or cases should be listed for hearing.
    • In contrast to the Court of Appeal in Re X and subject to further argument in such a test case or cases, I consider that the way in which the Court of Protection can at present best obtain further information and P’s participation in such cases is for it to exercise its investigatory jurisdiction to obtain information through obtaining s. 49 reports or through the issue of a witness summonses. This keeps the matter under the control of the court rather than invoking the necessity of appointing a litigation friend with the problems and delays that history tells us this entails and will entail and I have concluded is, or shortly will be, not fit for purpose.
    • I do not for a moment suggest that absent further resources being provided there will not be problems and delays in taking the course referred to in paragraph (4). Also, and importantly, I recognise that it would be focused on Article 5(1) and would not provide for monitoring on the ground until it is repeated from time to time for that purpose. But, the appointment of a litigation friend will also not provide that monitoring.
    • In such cases the argument advanced by the Secretary of State before me that a Rule 3A representative identified by the local authority be appointed shows that if this was a practically available option it would replicate the input that I have decided can be provided by an appropriate family member or friend and so satisfy the procedural safeguards required by Article 5 and common law fairness in non-controversial cases without joining P as a party.
    • That replication is an obvious solution that will provide the necessary safeguards more efficiently and at less expense than either
      1. the making of orders for s. 49 reports and the issuing of witness summonses perhaps coupled with more frequent reviews, or
      2. joining P as a party.
    • So I urge the Secretary of State and local authorities to consider urgently, and in any event before a test case or cases of this type are before the court, how this solution can be provided on the ground.”

    Comment:

     

    This is a decision focussed on practical solutions. It is of note however that much reliance is placed on the availability of resources – the Rule 3A representatives. There will of course be cases where family members and friends are able and willing to step into this role. There will be many other cases where P is unbefriended. In these cases, the court has two options. The first is to make use of s49 reports and the power to issue witness summonses to elicit the required information. This appears quite onerous, and can also be contentious- see the recent decision in RS. The second is the solution identified by the Secretary of State which is to appoint Rule 3A representatives “identified by the local authority.”

    There must be some doubt as to the ability of local authorities- already struggling to meet their obligations to provide IMCA and Care Act advocacy- to conjure up another group of individuals who will step in and provide the safeguards needed. Nor is there any consideration given as to how these representatives will be funded.

    The comments on YA and Re AJ can be seen as obiter as both judgments related to quite different scenarios. However it is noteable that in paragraph 145 Charles J appears to go further than he went in the YA judgment by expressly referring to the need for litigation friends (and by analogy Rule 11(7) representatives) to over-ride the wishes and feelings of patients without capacity.

    It is worth remembering that those appointed as “Rule 3A” representatives may ask for directions under COPR 148A, which could include a request for P to be joined and a litigation friend appointed.

    The possible use of “accredited legal representatives” (ALRs) if they become available was dealt with quickly at paragraph 117. There is currently no such panel of ALRs (although there is also no cohort of rule 3A representatives to be called on by local authorities). This would have been a practical solution at least in cases where P is entitled to legal aid. It is noted that in Re PD Baker J encouraged the possible use of ALRs in Schedule 3 cases. ALRs appointed in Re X types cases would have been well placed quickly to scrutinise and identify which cases require contested hearings and which really are uncontentious.

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    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.