The Re X process goes live

The much-anticipated new procedure for the judicial authorisation of deprivation of liberty in settings outside hospitals and care homes comes into force on 17 November.  The procedure implements the judgments of Sir James Munby P in Re X (1) and Re X (2).  It is set out in the new Part 2 of Practice Direction 10A (Deprivation of Liberty), and is accompanied by a new application form (with annexes), designed exclusively for applying for court-authorised deprivations of liberty.   All the materials are available here.

The Court of Protection has set up a dedicated team to deal with applications made under the Re X procedure.  The contact details are:

Court of Protection

P.O. Box 70185

London

WC1A 9JA

 

DX 160013 Kingsway 7

Telephone: 0207 421 8665

Email: COPDOLS/S16@hmcts.gsi.gov.uk

Lady Hale on DoLs and the Mental Capacity Act

Lady Hale gave a highly interesting speech to the Mental Health Tribunal Members’ Association on 17 October 2014 covering in great detail the history of Deprivation of Liberty Safeguards and the Mental Capacity Act.  Click here to read.

HT to Lucy Series (@TheSmallPlaces) for drawing our attention to this.

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

He concluded:

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

“A blatant disregard of the process of the MCA”

HHJ Nicholas Marston made findings of extensive breaches of the Convention rights of P, a young woman with severe learning disabilities and autism, and her family, by Somerset County Council, in a highly critical judgment.   P was 19 and had lived with her family all her life.  In May 2013 P became distressed and disruptive (possibly due to her menstrual cycle) at school and was returned home early from a school trip.  That evening her mother M noticed bruising to P’s chest and reported it to the GP and to staff at the respite placement where P was due to stay during a family holiday M was due to take.

During M’s holiday further bruising on P was noticed and a safeguarding procedure was put in hand.  Those investigating the injuries were criticised by the judge for failing to obtain the “easily discoverable” but key information that P had been seen to hit herself heavily on the chest during the school trip.  Instead a decision was taken that P should not return home and M was informed of this on her return from holiday.  It was plain that P’s whole family sought her return but P remained at the placement where her distress resulted in the prescription of aripiprazole, an anti-psychotic medication with a sedative side effect.  In November 2013 she was moved to a second placement and in December 20113 a standard authorisation was granted and the local authority applied to the Court of Protection.

A nine day fact-finding hearing took place in May and June 2014.  Shortly before the hearing the local authority decided not to rely on any allegation regarding the bruising which had led to the safeguarding investigation.  The findings are set out in the judgment.  In giving his findings in relation to M’s parenting style and relationship with professionals the judge said:

“35. Finding 22, inability to accept advice on M’s part, and finding 23 M’s rigid style both of parenting and of dealing with professionals, are important issues when considering if returning home is an appropriate option because they directly relate to issues about the care P would be getting at home. Three points need to be made first. As I have already said, given the longevity of the relationship between M and the social workers and the number of social workers involved, there are bound to be some people who don’t get on and some who do. In her evidence M told me of social workers she had had good relationships with and others (the majority it has to be said) she did not. Second, M has a strong personality, otherwise she would have sunk under the weight of cares and problems in the last 20 years and she perceives herself as having to fight for a good deal for in particular P and A.  Third, as will become clear in the later parts of this judgment when I examine the conduct of the LA over the last 13 months, she and her family have had a lot to put up with. In his evidence the senior manager for social services conceded LA failures across the board and the damage that has done to the family and its relationship with the LA. Having said all of that there have in the past, prior to May 2013, been real clashes of personality and failures in communication but I cannot find that it has been proved on the balance of probabilities there has been an irrational refusal to co-operate from the family with the statutory authorities. The best evidence for that is that there was never, in the whole of Ps minority, an application in public law proceedings and no doubt if the LA had had evidence at the time of failure to co-operate on a scale which was causing P or any of the children significant harm such an application would have been made.

36.Two final points before leaving the Schedule, first the relevance to a best interests decision now of historical concerns which have never led to legal action prior to May 2013 has always been, in my view, difficult to demonstrate, so I agree with the comment in the Closing Submissions of the OS for P at paragraph 28 page 7: “…the reliance on this long and historical schedule to paint a damaging picture of this family is unnecessary and disproportionate. It does not build bridges.”  Second, the adversarial nature of the argument and cross-examination needed to advance the schedule robbed the LA’s apology for its conduct of at least some of it credibility, no matter how carefully and dextrously leading counsel for the LA put the case.”

The independent social worker instructed recommended a return home by P and this was supported by the Official Solicitor.  The judge found that the balance fell decisively in favour of a return home.

On the conduct of the local authority the judge said:

“75. In its position statement of 22/4/14 the LA concede that P was deprived of liberty and that there was a period where that deprivation was unlawful. It’s case is that was from the end of the respite care in early June to the urgent authorisation on 28/11/13. It further concedes that the deprivation of liberty and loss of her society to the family amounted to an interference with respect to their right to a private and family life contrary to Article 8 ECHR and that interference was not in accordance with the law. It argues that if a lawful process had been followed it is likely that P would have remained away from home while the LA pursued its concerns over safeguarding (the bruising issue) and in due course of time P would have moved to a residential home as they now suggest. It is conceded that if I do not think the residential home is in P’s best interests P should have been returned home at a significantly earlier date.

76.There is no question here that P was removed unlawfully from her family, she went into Selwyn for respite care and it is from the date of her mother’s return from holiday that the breach flows. I further accept that the LA had a duty to investigate the bruising but I find that a competently conducted investigation would have swiftly come to the conclusion that no or no sufficient evidence existed to be able to conclude P’s safety was at risk by returning her home. This conclusion should have been reached within a week or so after the family asked for her back. If the LA came to a different conclusion, as they did, they should have applied to the CoP by early June for a hearing. Not doing so is a further breach. Having not done so they should have told the family they could make an application, not doing that is a further breach. After the Police investigation ended in September P should again have been returned but was not nor was an application made to CoP as it should have been. The limitations and conditions placed on contact between the family and P constitute another breach.

77.The LA seeks to rely on the DOL urgent authorisation it obtained on 28/11/13 to close off the period of unlawful deprivation of liberty. In the case of London Borough of Hillingdon v Neary(2011) EWHC 1377, a case that has many depressing similarities to this one, Mr Justice Peter Jackson said at paragraph 33:

“The DOL scheme is an important safeguard against arbitrary detention. Where stringent conditions are met it allows a managing authority to deprive a person of liberty at a particular place. It is not to be used by a local authority as a means of getting its own way on the question of whether it is in the person’s best interests to be in that place at all. Using the DOL regime in that way turns the whole spirit of the MCA on its head, with a code designed to protect the liberty of vulnerable people being used instead as an instrument of confinement. In this case far from being a safeguard the way in which the DOL process was used to mask the real deprivation of liberty which was the refusal to allow Stephen to go home.”

78. I find that is also precisely what has happened here and the breach of Article 8 rights continues up to now.

79. These findings illustrate a blatant disregard of the process of the MCA and a failure to respect the rights of both P and her family under the ECHR. In fact it seems to me that it is worse than that, because here the workers on the ground did not just disregard the process of the MCA they did not know what the process was and no one higher up the structure seems to have advised them correctly about it.”

The judge noted that the Official Solicitor had indicated the intention to pursue a claim for damages for breach of P’s Articles 5,6 and 8 rights and to make that application within the COP proceedings