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A non-decision but far from a non-issue: Re X (Court of Protection Practice) [2015] EWCA Civ 599

Date:6 AUG 2015
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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]).

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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.


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.