Tag: Deprivation of Liberty

The Court of Protection, care homes, the rule of law and deprivation of liberty

The Vice-President of the Court of Protection, Hayden J, has written to Directors of Adult Social Services (in a letter which can be shared more widely) to highlight a number of key points relating to the operation of the MCA 2005 in the context of COVID-19 and care homes.

The wide-ranging letter takes in remote assessments and a protocol for managing DoLs prepared by Lorraine Currie, MCA/DoLS lead for Shropshire County Council; it notes that:

It was expressed to me, at the Hive group, that there appear to be some who believe that careful adherence to proper legal process and appropriate authorisation may now, at times, be required to give way to other pressing welfare priorities. I understand how this view might take hold in establishments battling to bring calm and reassurance to intensely distressed people, both in the Care Homes and within their wider families. It is important, however, that I signal that whilst I am sympathetic to the pressures, I am very clear that any such view is entirely misconceived. The deprivation of the liberty of any individual in a democratic society, holding fast to the rule of law, will always require appropriate authorisation. Nothing has changed. The Mental Capacity Act 2005, the Court of Protection Rules and the fundamental rights and freedoms which underpin them are indispensable safeguards to the frail and vulnerable.  (emphasis in original)

The letter also notes that:

There has been a striking and troubling drop in the number of Section 21A (MCA 2005) applications which has occurred, in some areas, alongside a significant reduction in referrals to advocacy services. It needs to be emphasised that where there has been a failure properly to authorise deprivation of liberty one of the consequences is that, in the absence of authorisation, there will be a loss of entitlement to public funding and inevitably an obstruction to the individuals absolute right to challenge the deprivation of liberty. For the present I simply highlight my concern and restate the importance of the statutory requirements.

In terms of remote assessments, this document prepared by Lorraine Currie is of considerable assistance; she also contributed to a webinar for the National Mental Capacity Forum on the subject, which can be found here.

 

Supreme Court news

The Supreme Court has granted permission to the Official Solicitor to appeal against the decision of the Court of Appeal in Re D [2017] EWCA Civ 1695.  The hearing has been expedited and listed for 3 and 4 October.  Anyone who wants to understand how the MCA 2005 is intended to interact with the Children Act 1989 will be well advised to keep a careful eye out for the judgment in due course.

The Supreme Court will hear the appeal in MM (concerning conditional discharge and confinement) on 26 July.  It has also very recently been confirmed will hear the appeal in PJ (concerning the jurisdiction of the Mental Health Tribunal over human rights issues, as well as CTOs and deprivation of liberty) on 22 October.

Law Commission Deprivation of Liberty report – the Government responds

The Government published its response to the Law Commission’s Mental Capacity and Deprivation of Liberty report on 14 March.  The headline is that the Government “agree[s] in principle that the current DoLS system should be replaced as a matter of pressing urgency,” and that it will legislate in due course.  Before the introduction of any new system, the Government has said that it will “need to consider carefully the detail of these proposals carefully and ensure that the design of the new system fits with the conditions of the sector, taking into account the future direction of health and social care.”

In its detailed response, the Government has accepted, or accepted in principle, all of the recommendations except (1) the recommendation relating to a statutory codification of capacity law in relation to children; and (2) four areas which it has left for the independent Mental Health Act review to consider.

Deckchairs on the legal Titanic? The Re X saga continues

In Re KT & Ors [2018] EWCOP 1, Charles J has returned – again – to the vexed question of how Re X applications (now, strictly, COPDOL11 applications) can proceed where there is no-one can properly play the part of Rule 3A (now Rule 1.2(5)) representative.  Charles J considered four test cases of the 300 or so that have now been stayed in accordance with his decision in Re JM [2016] EWCOP 15, there being no family member or friend is available for appointment as P’s Rule 1.2(5) representative.

Background

In early 2017, the Government Legal Department had written to local authority applicants in stayed cases to indicate that (1) the most appropriate course of action was for the local authority to identify a professional advocate; but (2) where one was not available, the local authority should liaise to take forward the process of commissioning a Court of Protection General Visitor to complete a report under s.49 MCA 2005. The GLD letters indicated that Ministers had agreed to provide funding to HMCTS to enable greater use of visitors by the COP. On the basis of these letters, two applicant local authorities sought to lift stays in four cases, which were listed before Charles J as test cases.

Charles J, it is fair to say, was unimpressed by the GLD letters, noting that they were devoid both of detail as to extra funding, and also how and why it was now said that a professional advocate had or had always had been a practically available option in a significant number of cases. Following directions made in the test cases, the Secretary of State filed submissions which asserted that local authority applicants owed a duty under s.6 Human Rights Act 1998 “to facilitate the speedy resolution of the application by (for example) ensuring that a professional advocate is appointed to represent P’s interests so far as necessary“. It was asserted that this duty: “falls into the same category as the DOLS duties which were considered in Liverpool City Council,” the unsuccessful judicial review brought by local authorities to seek to compel greater funding to discharge their DOLS obligations. As Charles J noted that, this was a radical departure from the position that had previously been taken by the Secretary of State in JM, where it had been agreed that local authority and other applicants do not owe a statutory duty to provide representation for P in the COP.

Whose obligation to provide representation for P?

Charles J expressed the preliminary view that the Secretary of State’s argument as to the obligation of local authorities under the HRA was wrong, running counter to the decision on the obligations of a local authority in Re A and C [2010] EWHC 978 (in particular at paragraph 96) and its application in Staffordshire County Council v SRK and others [2016] EWCOP 27 and [2016] EWCA Civ 1317.  However, even if they did owe such a duty, Charles J held that this did not assist the Secretary of State because the central, statutory, obligation lay with the Secretary of State for Justice to ensure that the COP, as a public authority, acts lawfully and so can apply a Convention compliant and fair procedure.

Visitor as Convention-compliant procedure?

Charles J agreed with the agreed position of both the applicant local authorities and the Secretary of State that the appointment of a Visitor would provide a fair and Convention compliant procedure because it would provide the essence of P’s Article 5 procedural rights, which had been identified in Re NRA & Others [2015] EWCOP 59 as requiring an independent person to: (1) elicit P’s wishes and feelings and make them and the matters mentioned in s.4(6) MCA 2005 known to the Court without causing P any or any unnecessary distress; (2) critically examine 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; (3) keep the implementation of the care package under review and raise points relating to it and changes in P’s behaviour or health. Charles J set out draft directions which could be made in cases where a Visitor was proposed.  Charles J acknowledged that there were both advantages and disadvantages to the appointment of a Visitor over a family member or friend, the advantages being the independence and expertise of the visitor, the disadvantages being the absence of a more regular review on the ground by someone who knows P and wants to promote their best interests.

Having conducted a detailed review of the (depressing) evidence before him, Charles J did not consider that the offer to fund Visitors by the Secretary of State was likely to offer anything but a short-term or a very partial solution to the issue. However, he held that this should not stop it being used for so long as it was available in practice.

Order of preference

In light of the matters set out above, Charles J had to resolve an issue as to whether, where no family member/friend is available to as Rule 1.2(5) representative, the second choice should be a Visitor (the local authorities’ position) or a professional representative (the Secretary of State’s position). In reality, as he noted, the dispute was based upon the budgetary battle between local and central government. In the abstract, Charles J considered, the appointment of a professional who could act independently as a Rule 1.2(5) representative and carry out regular reviews of P’s placement and care package on the ground would in most cases be likely to have advantages over the appointment of a Visitor because it would provide a better basis of and for review and equivalent expertise and independence to that provided by a Visitor.

However, given that there was no evidence that professional representatives were actually practically available in most cases, Charles J held that if he had to make a choice, he would choose a Visitor. He recorded the sensible acceptance by the Secretary of State that generally the COP can and should accept an assertion from an applicant authority that a professional Rule representative is not available for appointment at face value.

Joinder of the Crown/further stays

Charles J has no intention of letting the Government off the hook, noting at para 91 that:

In cases where a visitor is appointed (or some other available procedure is adopted to enable an application or review to proceed) there is no need to, or purpose for joining, or continuing the joinder of, the Crown. But, as soon as any such practically available process is no longer available I consider that, for the reasons given in JM and earlier in this judgment the COP should join the Crown to and stay such applications and reviews.

Way ahead

Charles J suggested that the Secretary of State, the Public Guardian and the COP (through the Senior Judge) try to agree a process by which the stays are lifted in the approximately 330 stayed cases on the same basis as in these cases. He indicated that in cases in which local authorities (or, presumably, other applicants) have not sought to lift the stay, an appropriate course would be for the Secretary of State to apply to lift the stay in a manner that ensures that a visitor will be available for appointment in each case. However, he left the ultimate decision as to how best to clear the backlog to the triumvirate set out above.

Comment

The decision in Cheshire West has caused huge resource implications. The Law Commission has estimated the cost of full compliance at £2.155 billion per year. One of the local authorities before the court, Wolverhampton, had brought 24 applications over the past 3 years, and estimated that that three times the present number should have been brought, the numbers being likely to increase with service users moving to supported living. The Law Commission had estimated that around 53,000 people are deprived of liberty outside hospitals and care homes, and calculated that this would cost local authorities and the NHS £609.5 million per year to authorise by obtaining welfare orders from the COP.   Only a very small fraction of these applications are being made, although between January and March 2017, there were 969 applications relating to deprivation of liberty, up 43% on the equivalent quarter in 2016 (678). Of these, 600 were Re X applications.

In the circumstances, it is hardly surprising that Charles J considered that funding to provide an additional 200 Visitor reports a year hardly scratched the surface of the problem. As he recognised, his analysis of the position represents, in essence, the re-arranging of deckchairs on the legal Titanic. LPS – and/or or a radical rethinking of the law relating to deprivation of liberty – cannot come soon enough.

Section 21A applications and legal aid

We reproduce below  a version of the case comment on the case of Briggs v Briggs [2016] EWCOP 48 which appeared in the December 2016 39 Essex Chambers Mental Capacity Law Newsletter.

Summary

In this case, Charles J had to decide whether it was possible for the question of whether it is a person’s best interests to continue to be given clinically assisted nutrition and hydration (‘CANH’) to be determined in proceedings brought under s.21A MCA 2005.   The question arose because the applicant – the wife of, and RPR for a man in a minimally conscious state – brought an application under s.21A MCA 2005 challenging the DOLS authorisation in place at the hospital he was in.  She did so on the express basis that doing so would allow her to claim legal aid on a non-means-tested basis so as to be able to have legal representation to be able to argue her case that continuation of CANH was not in his best interests.    Her position was opposed by the Official Solicitor, the Legal Aid Agency and the Secretary of State (as the Ministry of Justice and Department of Health collectively) on the basis that:

1. In the Official Solicitor’s case, non means tested funding is not available to present arguments relating to the care, support or treatment of a P as they related to conditions of detention, and were therefore outside the scope of s.21A (Article 5 not relating to conditions of detention);

2. On the Secretary of State’s case, such funding was only available where the issues related to “physical liberty.”

Charles J, in an extensive and wide-ranging judgment, came to the very clear conclusion that both of these arguments were wrong, and that it was entirely proper for the Court of Protection on a s.21A application to consider the question of whether CANH was in Mr Briggs’ best interests as part and parcel of the discharge of its functions under s.21A MCA 2005. The following conclusions from his judgment are of particular relevance or importance:

1. The clear conclusion that a DOLS authorisation does not authorise the care plan for, or medical treatment of P, or protect those who are providing them from liability for so doing. It is limited to authorising the deprivation of liberty that those acts create (paragraph 48);

2. The determination of whether the deprivation of liberty is in P’s best interests, necessary and proportionate “has to involve consideration of P’s circumstances in a hospital or care home and so of the care, support and treatment proposed or provided to meet P’s needs in them even if it is limited to a consideration of their effect” (paragraph 50), and hence “the determination of the questions posed by the definition of the best interests condition must involve a consideration of: i) the impact of possible and available alternatives and issues of degree, and ii) as far as reasonably ascertainable P’s past and present wishes and feelings, beliefs and values and factors that P would be likely to consider if he were able to do so” (paragraph 52);

3. That generally the COP should take control of all aspects of the case when proceedings are brought under s.21A MCA (even if an authorisation should remain in place to allow non-means-tested legal aid to continue to be justified: paragraphs 29-34). This was particularly the case in the proceedings before him given the nature of the CANH best interests issue (paragraph 70), in which the determinative or central issue was whether CANH is in Mr Briggs’ best interests and the conclusion on it should found an order under s. 16(2) MCA 2005. The determination of that issue by the COP would found and so was directly relevant to its consideration of its exercise of its functions under s.21A (which it can exercise whether or not proceedings have been issued under s.21A) (paragraph 76);

4. Whatever the precise requirements of Article 5 ECHR, a literal construction of DOLS shows that they went beyond that required to meet Article 5 and effectively include the best interests test that is applied whenever a decision has to be made pursuant to the MCA for a person who lacks capacity to make that decision himself (paragraph 87). This showed that:

91. […] in a case such as this when the purpose of the placement in the hospital is obviously for care and treatment the “all or nothing approach” advanced effectively on the basis that P will continue to be deprived of his liberty whatever regime of treatment is put in place (and so whether or not CANH is in Mr Briggs’ best interests) runs contrary to a best interests consideration of the circumstances P (Mr Briggs) is in on the ground as it seeks to exclude a consideration of P’s views etc. under s. 4(6) and whether the conditions can be improved or made less restrictive under s. 1(6) of the MCA.

Alternatively, if it is said that the views of P on (life sustaining or other) treatment can be taken into account in considering whether he should be deprived of his liberty (or his personal liberty should be removed) this takes one back to the central issue in this case namely the impact of Mr Briggs’ views etc. under s. 4(6) on whether treatment should be withheld with the consequence that he should be allowed to die. It would be very artificial and in my view callous to say that this was irrelevant to the issues relating to his physical liberty, or the termination of the exiting DOLS authorisation, because during the period after the cessation of the CANH leading up to his death his physical liberty would not change even if (as is at least likely) he moves from the hospital to a hospice.

5. The acknowledgement that the best interests assessor will not be able to carry out the intense scrutiny that the COP can and would have practical difficulties in challenging the medical decisions that found protection from liability under s. 5 MCA. Charles J noted, however, that the assessor could reach his best interests assessment on the basis of the views of the treating team leaving it to P or his RPR to challenge the authorisation or put a condition on the authorisation or limit its duration to enable any dispute to be put before the COP (paragraph 94);

6. Further, even if the best interests requirement under DOLS was limited in the way that the Official Solicitor and the Secretary of State argued, the best interests test as then applied by the Court of Protection in determining whether CANH should be continued was related to matters arising under s.21A(2)(a)-(d), because (1) it was related to the best interests condition of the best interests requirement; (2) and provided the answers or information relevant to the answers to the questions of: (a) the period of the standard authorisation (e.g. until a move to a hospice or a rehabilitation unit); (b) the purpose of the standard authorisation, namely whether the treatment should or should not include CANH; and (c) conditions of the standard authorisation (e.g. about preparations to be made for a move).   These answers informed – Charles J held – what the COP can order under s.21A(3) by way of variation or termination of the standard authority itself or by direction to the supervisory body (paragraphs 96-99).   Charles J noted in this regard that:

This view of the width of what the COP can properly do under s. 21A is confirmed when other types of case are considered. For example, when P is in a care home the best interests issues can encompass changes in the care plan (incorporated into or on which the standard authorisation is based) involving less restrictive options, the giving of medication covertly or in particular circumstances, the use of restraint, more visits to the community and contact. Even if they are outside the factors to be considered under the qualifying requirements (and so the best interests condition) they:

i) inform and so relate to the matters referred to in s. 21A (2)(b) to (d), and

ii) inform the order or orders to be made under s.21A(3), (6) and (7) in respect of the DOLS authorisation that has been granted (and if necessary extended by the COP applying the approach in Re UF).

7. Finally, Charles J noted that, on a purposive intention of the legislation, Parliament would not have intended the COP to be concerned with the distinctions advanced in this case by the Secretary of State, the LAA and the Official Solicitor:

108. Absent the issue relating to the availability of non means test legal aid, which it is common ground is irrelevant, these distinctions are not agreed between them, give rise to fine, difficult and potentially emotionally draining issues (e.g. whether a decision that leaves out of account the views etc. of P on whether he should be detained at place A or place B relates to his personal liberty or a deprivation of his liberty within Article 5 having regard to its subjective element) and are irrelevant because the COP can deal with all issues in this case in an application brought in reliance on s. 21A or an application brought seeking orders under ss. 15 and 16 of the MCA. […]

Charles J therefore held that Mrs Briggs could properly raise the issue of whether CANH should be continued as part of her s.21A challenge as RPR for her husband. We address the substantive decision in relation to her husband’s treatment in the separate case comment below.

Comment

On one view, it would appear odd that a s.21A application could be used as a vehicle to challenge decisions about CANH, and it is undoubtedly the case that Mrs Briggs was “lucky” that there happened to be in place a DOLS authorisation at the hospital to allow her to do so (note that Charles J expressly did not decide whether or not in fact Mr Briggs was deprived of his liberty, as this was assumed to be the case for purposes of the preliminary issue decided here).

However, once one steps away from the specific place that CANH has as a type of serious medical treatment (‘SMT’) and the mindset of SMT cases, Charles J’s logic would seem impeccable.   DOLS may have been designed to plug the Bournewood gap, and to that end could have been limited solely to a determining whether or not the deprivation of liberty was necessary and proportionate (the test for Article 5 purposes).   However, the scheme undoubtedly went further to include a specific best interests requirement which, in turn, requires the application of the best interests test under s.4 MCA 2005.  Once the best interests genie was let out of the bottle, that must carry with it the connotation that those concerned with considering the requirement (and the court on a s.21A application) must have a wide view of the nature and purpose of the authorisation and – in turn – asking whether the care and treatment which gives rise to the need for it is, in fact, in the person’s best interests.

It is, perhaps, not surprising – given the implications for legal aid in s.21A applications – that the Secretary of State/Legal Aid Agency are seeking permission to appeal to put the best interests genie back in its bottle.

 

 

Re SRK – Court of Appeal dismisses appeal

The Court of Appeal has dismissed the Secretary of State’s appeal against the decision of Charles J in Re SRK [2016] EWCOP 27.   By way of refresher, Charles J found in that case that the state was indirectly responsible for “private” deprivations of liberty arising out of arrangements made by deputies administering personal injury payments.   The Secretary of State for Justice (‘SSJ’) appealed the decision on two grounds, contending that:

1. The combination of the existing civil and criminal law and the obligations of public bodies to safeguard vulnerable individuals were sufficient to satisfy the positive obligation of the State under Article 5 where the day to day care of a person, who was objectively deprived of liberty but lacked capacity for the purposes of the MCA to consent to that loss of liberty, was being provided entirely privately rather than by the State. In particular, the SSJ contended that Charles J was wrong to conclude that, in such a situation, the State’s positive obligation under Article 5(1) ECHR can only be discharged if a welfare order is made by the CoP under s.16 MCA authorising the deprivation of liberty pursuant to s.4A(3) MCA;

2. Responsibility for a “private” deprivation of liberty could not be attributed to the State in a case such as that of SRK, there was no reason for the local authority or any other public body to have any suspicions about abuse, that there was some deficiency in the care provided to the person, that something has been done that was not in their best interests or that the deprivation of their liberty was greater than it could and should have been.

Sir Terence Etherton MR, giving the sole reasoned judgment, had little hesitation in dismissing both of these grounds of appeal.

State’s Article 5 obligations

The only live question on the appeal was whether SRK’s deprivation of liberty was imputable to the state under the third limb identified in Storck: i.e. by way of its failure to discharge its positive obligation to protect him from deprivation of liberty contrary to Article 5(1).

The Master of Rolls held, whilst, that the SSJ had been correct to identify that the State’s positive obligation under Article 5(1) is to take reasonable steps to prevent arbitrary deprivation of liberty, Charles J had adequately expressed that test in his own language.  As Charles J had noted in his judgment, Storck does not help on whether, in any particular case, the proper or the defective performance of a regime that has been put in place pursuant to the positive requirement of Article 5(1) would amount to a violation of that positive obligation. In other words, the Master of the Rolls held (at para 63) “Storck does not identify what has to be in place to meet the minimum requirement of Article 5(1).”

The Master of the Rolls accepted that the ECrtHR in Storck left open the possibility that a regime short of the requirement of a court order and court supervision might be adequate for the State to meet its positive obligations under Article 5(1).   It was the SSJ’s case, he noted, that “notwithstanding the absence of a requirement for a welfare order from the CoP, the United Kingdom’s existing domestic regime of law, supervision and regulation in respect of incapacitated persons who are being treated and supported entirely in private accommodation by private providers is sufficient compliance with the State’s positive obligation under Article 5(1), at least where the public authorities have no reason to believe that there has been any abuse or mistreatment” (para 65).   The SSJ relied particularly on the functions of the Care Quality Commission, the functions of the Public Guardian, the professional responsibilities of doctors and other health professionals, the safeguarding obligations of local authorities, and (in the words of the SSJ’s skeleton argument) “the general framework of the criminal justice system and civil law.”

However, Sir Terence Etherton MR held, Charles J had been both entitled, and right, to dismiss that argument:

74.  The critical point, as Ms Nageena Khalique QC, for the Council, emphasised, is that, although local authorities and the CQC have responsibilities for the quality of care and the protection of persons in SRK’s position, they will only act if someone has drawn the matter to their attention and there is nothing to trigger a periodic assessment. The same is true of doctors and other health professionals. Save where there are already proceedings in the CoP (when the functions of the Public Guardian will be engaged), the current domestic regime depends on people reporting something is wrong, and even then it will only be a notification of grounds for concern at that specific moment in time. That may be particularly problematic in cases where no parents or other family members are involved in the care and treatment. It does not meet the obligation of the State under Article 5(1) to take reasonable steps to prevent arbitrary deprivation of liberty.

75. For the same reasons, as was stated by the ECrtHR in Storck, criminal and civil law sanctions which operate retrospectively after arbitrary deprivation of liberty has occurred, are insufficient to discharge the State’s positive obligation under Article 5(1).

 Sir Terence Etherton MR therefore held that:

78. The Judge was fully entitled, and right, to conclude in the circumstances in paragraphs [143] and [146] that, absent the making of a welfare order by the CoP, there are insufficient procedural safeguards against arbitrary detention in a purely private care regime.

79. The fact that, as the Judge acknowledged in paragraph [147], in the present and in many other such cases, a further independent check by the CoP will add nothing, other than unnecessary expense and diversion of resources, does not detract from the legitimacy of his conclusion since, as he observed in paragraph [148], there are other cases where the person lacking capacity will not have supporting family members or friends, and deputies and local authorities may not act to the highest requisite standards. No doubt, as the Judge observed in paragraph [148(v)], the practical burden of such applications would be reduced, in a case such that of SRK, by a streamlined paper application for the making of the initial welfare order and paper reviews.

The relevance of abuse

Sir Terence Etherton MR was equally dismissive of the second ground of appeal:

83. Turning to the second substantive part of Ms Kamm’s submissions, I do not accept the SoS’s argument that, since each case of an alleged breach of Article 5(1) is fact dependant, there was no breach by the State of its positive obligation under Article 5(1) in the present case because SRK’s care regime was in his best interests and was the least restrictive available option, and there was nothing to suggest the contrary to the Council or that there was any abuse. That is an argument that, even where there is objective and subjective deprivation of liberty of an individual, of which the State is aware, there can be no breach of Article 5(1) if the individual is being cared for, supported and treated entirely privately and happens to be receiving a proper standard of care in accordance with the requirements of the MCA at the particular time the State becomes aware of the deprivation of liberty. There is nothing in the jurisprudence to support such an argument. It runs counter to the interpretation and application of the spirit of Article 5(1) in, for example, HL and Cheshire West, in which the focus was entirely on the State’s duty to prevent arbitrary deprivation of liberty and not on the quality of care and treatment actually being provided or, indeed, on whether the best and least restrictive treatment would not have involved deprivation of liberty of the individuals in those cases.

By way of concluding observation (without express reference to the Law Commission’s work, but surely with this in mind), the Master of the Rolls noted:

83. inally, it is important to note that, while an application to the CoP is necessary in the present state of law and practice for the State to discharge its positive obligation under Article 5(1), such a step might not be essential if a different legislative and practical regime were to provide for proactive investigation by a suitable independent body and periodic reviews. It would, as Ms Kamm said, be for the Government to fill the gap as it had done in the case of the Bournewood gap.

Comment

It is difficult to see how the Court of Appeal could have reached any other conclusion than that reached by Sir Terence Etherton MR, although it is notable that he did not seem to have reached it with the same degree of reluctance as did Charles J.

The ratio of the decision of the Court of Appeal would appear – to my mind – to apply to “private” arrangements made by any court appointed deputy (whether or not they are administering a personal injury payout).   Trickier is the question of whether or not they apply to “private” arrangements made by an attorney as an attorney, unlike a deputy, is not appointed by the state.  However, Charles J had at first instance referred to the potential for an attorney paid personal injury damages as one of those who should be required to know that the regime of care and treatment creates a deprivation of liberty within Article 5(1), and Sir Terence Etherton MR made no comment upon this (see para 60).

More broadly, in the circumstances, it seems to me that there is now really very little distinction between “public” and “private” deprivations of liberty: wherever the state is or, ought, to be aware of a person being confined under arrangements to which they cannot consent, then they will need to take steps to ensure that confinement is authorised. Absent legislative change to enable administrative procedures to be used, it will be necessary to obtain authority from the Court of Protection under the Re X procedure.

It is in this regard unfortunate that the Court of Appeal did not take the opportunity to confirm whether it is, in fact, the responsibility of the deputy (or – by analogy – attorney) to seek such an order in such cases.   What, of course, is particularly problematic with any approach which requires steps to be taken on behalf of the person concerned is that they will inevitably cost money, money which (in most cases) will have to come from their estate.  In cases such as SRK’s, it is possible to factor this into any personal injury award, but in other cases it does come dangerously close to suggesting that people should pay for the privilege of being detained.

Until and unless either this decision is successfully appealed, or the Supreme Court or Strasbourg determines that “deprivation of liberty” has a narrower meaning than that given at present, it remains the case, therefore, that the tentacles of the state will – inevitably – have to extend ever further into private settings in the name of protecting Article 5 rights.   I have my own thoughts as to how we might find a principled way to define deprivation of liberty in a way which returns it to its core meaning of coercion, but those are for another day.

 

 

 

 

 

 

Objections, DOLS and the Court of Protection

The long-awaited judgment from Baker J following up on AJ has just been published.  A full report will appear in the next 39 Essex Chambers Mental Capacity Law Newsletter, but in brief Baker J had to address the question of: “When, if at all, does the requirement under Article 5(4) to assist P to exercise his or her right of appeal to the Court of Protection under s.21A of the MCA arise in cases other than those in which P expresses a clear and consistent objection to the arrangements for his/her care and treatment?”

Having answered the question in characteristically erudite fashion, Baker J then very helpfully gave (at para 86) general guidance for the future, reproduced below.

(1) The RPR must consider whether P wishes, or would wish, to apply to the Court of Protection. This involves the following steps:

(a)   Consider whether P has capacity to ask to issue proceedings.  This simply requires P to understand that the court has the power to decide that he/she should not be subject to his/her current care arrangements.  It is a lower threshold than the capacity to conduct proceedings.

(b)   If P does not have such capacity, consider whether P is objecting to the arrangements for his/her care, either verbally or by behaviour, or both, in a way that indicates that he would wish to apply to the Court of Protection if he had the capacity to ask.

(2)    In considering P’s stated preferences, regard should be had to:

(a)   any statements made by P about his/her wishes and feelings in relation to issuing proceedings,

(b)   any statements made by P about his/her residence in care,

(c)   P’s expressions of his/her emotional state,

(d)   the frequency with which he/she objects to the placement or asks to leave,

(e)   the consistency of his/her express wishes or emotional state; and

(f)    the potential alternative reasons for his/her express wishes for emotional state.

(3)     In considering whether P’s behaviour constitutes an objection, regard should be had to:

(a)   the possible reasons for P’s behaviour,

(b)   whether P is being medicated for depression or being sedated,

(c)   whether P actively tries to leave the care home,

(d)   whether P takes preparatory steps to leave, e.g. packing bags,

(e)   P’s demeanour and relationship with staff,

(f)    any records of challenging behaviour and the triggers for such behaviour.

(g)   whether P’s behaviour is a response to particular aspects of the care arrangements or to the entirety of those arrangements.

(4)   In carrying out this assessment, it should be recognised that there could be reason to think that P would wish to make an application even if P says that he/she does not wish to do so or, conversely, reason to think that P would not wish to make an application even though he/she says that she does wish to, since his/her understanding of the purpose of an application may be very poor.

(5)   When P does not express a wish to start proceedings, the RPR, in carrying out his duty to represent and support P in matters relating to or connected with the Schedule, may apply to the Court of Protection to determine any of the four questions identified in s.21A(2) i.e. on the grounds that P does not meet one or more of the qualifying requirements for an authorisation under Schedule A1; or that the period of the standard authorisation or the conditions subject to which the standard authorisation is given are contrary to P’s best interests; or that the purpose of the standard authorisation could be as effectively achieved in a way that is less restrictive of P’s rights and freedom of action.

(6)   Consideration of P’s circumstances must be holistic and usually based on more than one meeting with P, together with discussions with care staff familiar with P and his/her family and friends.   It is likely to be appropriate to visit P on more than one occasion in order to form a view about whether proceedings should be started.

(7)   By way of an alternative to proceedings, it may be appropriate to instigate a Part 8 review, or to seek to work collaboratively with the family and the commissioning authority to see whether alternate arrangements can be put in place. Such measures should not, however, prevent an application to the court being made where it appears that P would wish to exercise a right of appeal.

(8)   The role of the IMCA appointed under s.39D is to take such steps as are practicable to help P and the RPR understand matters relating to the authorisation set out in s.39D(7)(a) to (e), and the rights to apply the Court of Protection and for a Part 8 review, and how to exercise those rights.  Where it appears to the IMCA that P or the RPR wishes to exercise the right, the IMCA must take all practical steps to assist them to do so.  In considering P’s apparent wishes, the IMCA should follow the guidance set out above so far as relevant.

 

 

Revised COPDOL 10 form to come into effect on 1 December 2016

The revised COPDOL 10 form, incorporating (in particular) the additional questions posed by Charles J in Re NRA, is to come into effect on 1 December.  A copy of the form is available here, but the ’embargo’ marking is a reminder that it cannot be used before 1 December (the current form, in PDF and unofficial Word form) is available here.

Law Commission’s interim statement published

You can read the Law Commission’s interim statement on its review of the deprivation of liberty safeguards here.  The statement summarises the responses received to its consultation paper and gives the Commission’s preliminary views as to the way forward.

A total of 583 responses were received after an extension publication to which many readers will have contributed.

In brief the Commission currently concludes:

  • There is a compelling case for replacing the DOLS through legislation.  The system is currently unsustainable and DOLS has failed to deliver improved outcomes for those lacking capacity and their families.
  • Any new scheme must reduce the administrative burden and costs of DOLS.
  • A more streamlined and flexible scheme will be introduced with the responsibility for establishing a deprivation of liberty shifted to the commissioner not the provider.  The commissioner will in many cases be able to rely on existing assessments of capacity and best interests.
  • All those deprived of their liberty would be eligible for safeguards including advocacy and /or assistance and the right to challenge the deprivation of liberty (the original proposal was for automatic referrals to the court).  The Commission has not yet decided whether the review should be by the First Tier Tribunal or the Court of Protection.
  • Amendments to the MCA will seek to maintain article 8 protections to ensure there is sufficient consideration of the necessity of removing the individual from their home and giving greater priority to their wishes and feelings.
  • Some groups may have an additional layer of oversight by an Approved Mental Capacity Professional, limited to a one-off decision whether to agree or not the other deprivation of liberty.  These groups are not defined as yet.
  • There will be no changes to the Mental Health Act.
  • The new scheme should  be removed from the Coroners and Justice Act 2009.

The Commission is not seeking further responses except as to one issue- the name of the scheme.  Those with suggestions are invited to contact Olivia.Bird@lawcommission.gsi.gov.uk by 23 June 2016.

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.