A non-decision but far from a non-issue: Re X (Court of Protection Practice) [2015] EWCA Civ 599
Sep 29, 2018, 22:15 PM
Court of Protection, deprivation of liberty, authorisation by the Court, involvement of P in the proceedings, jurisdiction to hear an appeal, joinder of P to proceedings, Practice Direction 10A, need for an oral hearing
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A non-decision but far from a non-issue: Re X (Court of Protection Practice) [2015] EWCA Civ 599
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Court of Protection, deprivation of liberty, authorisation by the Court, involvement of P in the proceedings, jurisdiction to hear an appeal, joinder of P to proceedings, Practice Direction 10A, need for an oral hearing
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Aug 6, 2015, 23:30 PM
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In the case of
Re X (Court of Protection Practice) [2015] EWCA Civ 599, the
Court of Appeal considered two decisions of the President of the Court of
Protection, Sir James Munby, which had given rise to a new procedure for
dealing with applications made for the Court to authorise deprivations of
liberty. The number of such applications
had soared following the decision in
Surrey County Council v P and Others, Cheshire West and Chester Council v P and Another [2014] UKSC 19, [2014] COPLR 313 in which the justices of the
Supreme Court clarified the 'acid test' for determining whether the
arrangements in place to safeguard P constituted a deprivation of P’s liberty,
with figures submitted to the Health and Social Care Information Centre
suggesting that, in the year following the landmark decision, the number had
risen ten-fold.
1
Munby P identified a clear need to ensure that this huge number of cases could
be dealt with in a manner that avoided delay but, at the same time, should be
compliant with Art 5 ECHR.
The procedure that the President therefore developed
(referred to as the 'streamlined' procedure) provided that, in certain cases,
an application for the Court to authorise a deprivation of liberty need not be
determined at an oral hearing and may be decided by a judge on the papers
alone. The President also determined
that, provided P is able to participate in those proceedings in such a way as
to enable P to present their care properly and satisfactorily, P need not
necessarily be joined as a party to the application. These were the two features of the '
Re X procedure' which were raised by the
appellants before the Court of Appeal.
Black LJ, giving the lead judgment of the
Court, considered the preliminary procedural point, namely whether the
President had jurisdiction to decide as he did at first instance and therefore
whether any appeal or judicial review proceedings were properly constituted
before the Court of Appeal, and the answer was a resounding 'no'. At para [55], she reflects: 'we therefore
have before us appellants who have no determination against which they need to
appeal, whereas those (if any) who might have had a legitimate appeal against a
decision of the President have not appealed'. That said, the Court of Appeal did go on to set out what it would have
decided, had there been jurisdiction to do so, but only in respect of whether P
ought to be joined to the proceedings, there having been insufficient time for
argument to be heard on the second issue. The unanimous conclusion was that P
must be joined as a party to ensure that the degree of protection required by
the ECHR under Art 5, and as reaffirmed in the Strasbourg jurisprudence. The effect, however, is that DOL applications
now appear to be at a complete standstill because of the procedural and
practical impossibilities in appointing a litigation friend for P.
The creation of an impasse
What has been interesting to see, since the
decision on 16 June 2015, is how the Court of Protection has reacted to the
judgment. On 9 July 2015, District Judge
Marin handed down judgment in the case of
MOD and Others (Deprivation of Liberty) [2015] EWCOP 47, in respect of nine
unrelated applications to authorise arrangements constituting a deprivation of
liberty. With the Court of Appeal’s
judgment clearly in mind, on issue, the Court had invited the Official
Solicitor to act as litigation friend so that P could be joined as a
party. In the more recent decision in
Re PD [2015] EWCOP 48, Baker J
concluded that it would be 'extremely unwise for any judge at first instance to
ignore what was said by the Court of Appeal', and he further decided that he 'must
treat the
dicta as the strongest
possible indication of how the Court of Appeal would rule on the question
before it, in the event that the issue returns to that Court as part of a
legitimate appellate process'.
2
Even though the Court of Appeal found it
had no jurisdiction to determine the appeal advanced in
Re X and the decision that was delivered was, at best,
obiter dicta, the Court of Protection has
sat up and listened. Unfortunately, the
effect of doing so has been to create a stalemate and no doubt there are
hundreds, if not thousands, of cases currently at a complete standstill. The reason for this arises from r 3A(4),
COPR 2007, which provides that an order joining P as a party to the proceedings
does not have effect unless and until she has a litigation friend appointed to
act on her behalf.
In
MOD, the Official Solicitor, responding
to the invitations to act for the nine patients involved, said that he was
unable to take them up for budgetary reasons and due to the limited capacity of
his Healthcare and Welfare team given the sheer volume of applications, which
had risen yet further since the Court of Appeal’s decision.
2 In all but one of those nine cases, this
created an impasse, with there being no identifiable and available candidate to
fulfill the role of litigation friend to P.
In an attempt to progress the issue, DJ Marin transferred the
proceedings to Charles J, the Vice President of the Court of Protection, to
decide
inter alia whether P must be
joined in a case involving the deprivation of her liberty, how to deal with the
issues around appointment of suitable litigation friends and whether other
cases, such as these nine, should be stayed pending determination of the issues
identified. That hearing was due to take
place between 30-31 July 2015 and practitioners will await the outcome with
great anticipation.
1 Health and Social Care Information Centre, “Deprivation of Liberty Safeguards (DoLS) – Monthly Summary Statistics Quarter 4 2014-2015 (January to March)” published on 12 May 2015 and available at
http://www.hscic.gov.uk/catalogue/PUB17509/dols-q...
2 See para [14].
3 DJ Marin remarks in MOD that approximately 100 new cases had been issued following the Court of Appeal’s decision and one of the applicant local authorities had indicated during the course of the hearing that it had hundreds more which were to be issued imminently (see para [17]).
Breaking the deadlock
The key to resolving the impasse may turn
out to be the new r 3A, which sets out the 'menu' of directions the Court could consider making
to ensure that P is able to participate in the case. Only one of the directions set out in the new
rule is to join P as a party to the proceedings; the others involve P being
represented by someone other than a litigation friend or addressing the Court
directly or indirectly. The question for
the Court will be whether the protection afforded under Art 5 ECHR and the
jurisprudence of the European Court of Human Rights is sufficiently promoted
through the alternative means of securing P’s participation in the proceedings
or whether nothing short of joinder will do.
It is
noteworthy that Black LJ did not go so far in
Re X as to suggest that no scheme in relation to deprivation of
liberty could be Art 5-compliant unless P was joined, however she could not
see an alternative to this course being taken in every case 'given the tools
presently available in our domestic procedural law' (para 104). Therein lies an interesting issue, as the
Court of Appeal handed down its decision a fortnight before the second tranche
of rule changes, which included r 3A, came into effect and no mention is made
in the course of the judgments of the imminent rule changes. Consequently, there is no consideration of
whether the appointment of a representative, who would furnish the Court with
information pertaining to s 4(6) Mental Capacity Act 2005, or, once the scheme
is in place, an accredited legal representative, who would represent P in the
proceedings and discharge 'such other functions as the court may direct', might
provide sufficient safeguards to ensure that P’s rights under Art 5 are
protected.
It is
almost inevitable that the Court of Protection will have to embrace r 3A if
it is to deal with the procedural and case management difficulties presented by
Re X.
Support for this theory lies in the judgment of Baker J in
Re PD.
Although this was a case brought under Sch 3 of the Mental Capacity
Act for recognition and enforcement of an order made in a foreign jurisdiction
that deprives a person of their liberty, and therefore the Court of Protection
is specifically not justified in seeking to review the merit of that original
decision,
4
there are analogous considerations. Under para 19(3) of Sch 3, the Court is specifically required to consider
whether the adult was given the opportunity to be heard in the original
proceedings and, if not, whether that constitutes a breach of natural
justice. This has its obvious parallels
with seeking to ensure P’s participation in a deprivation of liberty
application. Practice Direction 2A, also
new since 1 July 2015, sets out that the purpose behind r 3A is to ensure
that P takes an appropriate part in the proceedings and that the Court is
properly informed about P in the context of the difficulties of securing this
in a way that is proportionate to the issues involved and the nature of the decisions
which need to be taken whilst avoiding excessive cost and delay.
5
The
beauty of r 3A is its flexibility, as noted by Baker J: all of the options
under the 'menu' are designed to ensure that the Court has full information
about P and her interests and position are properly secured, but some are less
demanding of resources than others. The
key issue is whether a direction short of joinder might lead to the
difficulties identified by the Court of Appeal in
Re X, in depriving the Court of any information about P save that
which is put before the Court by those applying to deprive her of her liberty.
6 The appointment of a representative or an
accredited legal representative, or indeed allowing P the opportunity to
address the Court directly, are all options that will need to be considered on
the facts of the particular case that is presented. It may not always be proportionate or
necessary to join P as a party to the proceedings if her interests and position
can be secured by other means. Of course,
the scheme for accredited legal representatives is not yet in place and it will
remain to be seen exactly what a “representative” may be required to do beyond
set out information pursuant to s 4(6) of the Act. If these options are to be considered as realistic
and sound alternatives to joinder, they must be developed as a matter of great
urgency.
Conclusion
Interestingly,
we seem to have come full-circle, back to the reasons for developing the
“streamlined” procedure in the first place.
The President had well in mind the need to deal with cases
proportionately and expediently and those are precisely the considerations that
the Court is now countenancing in the latest wave of litigation.
If
Charles J considers, when he adjudicates upon the issues set out by DJ Marin in
MOD, that the alternative options under
Rule 3A are not sufficient to protect P’s interests and position, there will be
fundamental and perhaps insurmountable difficulties in progressing deprivation
of liberty applications in a large number of cases. The Official Solicitor, in
MOD and doubtless in many other cases up
and down the country, has signalled his inability to act for P. The Healthcare and Welfare team is already stretched
to capacity and insufficiently resourced to deal with the exponentially
increasing numbers of DOL applications in the current legal climate. There may be no, or no appropriate,
alternative candidate for P’s litigation friend than the Official
Solicitor. The effect will be inordinate
delay and breaches of P’s right for an expedient resolution to the proceedings,
which is simply unconscionable when the Court of Protection is under pressure
to ensure cases are dealt with as expediently as possible.
7 Deprivations of liberty may go unauthorised
and P’s rights under Art 5 would be breached. DOL applications will not be determined, even
on an interim basis, for fear that the Court is not able to scrutinise the
application sufficiently without P’s contributions as a party.
8 Short of an expansion of, and increase in
funding for, the Official Solicitor’s Healthcare and Welfare team, it is hard
to see how this potential crisis could be resolved other than by embracing the
flexibility of r 3A.
If the Vice President
does accept that an alternative direction under r 3A is sufficient, then it
seems likely that any such order would be appealed on the basis of the decision
in
Re X. The legal profession and those professionals
dealing with deprivations of liberty 'on the ground' will require certainty and
only a properly constituted appeal will begin to provide this. What is clear is that this issue is not going
to be resolved quickly. Something is
going to have to give in order that vulnerable adults are protected and their
human rights are respected. All eyes will
now be fixed on the Vice President’s court to see where that compromise will
come from.
4 See para 37 of Baker J’s decision in
Re PD.
5 Paragraph 1, PD2A.
6 See
Re X, supra, per Black LJ at para [100].
7 See, for example, Peter Jackson J’s decision in
A and B (Court of Protection: Delay and Costs) [2014] EWCOP 48, [2015] COPLR 1 and the decision of the Court of Appeal in
MN (Adult) [2015] EWCA Civ 411.
8 See DJ Marin’s refusal to make an interim declaration in
MOD at the conclusion of the judgment.
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