Re EM
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 29 July 2022 |
| Neutral Citation | [2022] EWCOP 31 |
| Docket Number | Case No: 13956061 |
| Court | Court of Protection |
[2022] EWCOP 31
Mr Justice Mostyn
Case No: 13956061
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
David Lawson (instructed by Mills & Reeve) on behalf of Coventry and Warwickshire Integrated Care Board and Coventry and Warwickshire Partnership Foundation Trust
Hearing date: 7 July 2022
APPROVED JUDGMENT
This case concerns a 74-year-old man (“EM”) who was unfortunately diagnosed with malignant melanoma in October 2021 and brain metastases in April 2022. By an application dated 1 July 2022, NHS Coventry and Warwickshire Integrated Care Board (“the ICB”) applied for an order to remove EM from his home to an acute hospital setting (University Hospital Coventry and Warwickshire) because of serious concerns about the safety of his environment and his refusal of care. Those concerns were initially raised by Coventry and Warwickshire Partnership NHS Trust (“the Trust”), which has also participated in this application.
At an urgent out of hours hearing on 1 July 2022 before Keehan J, it was declared on an interim basis that there was reason to believe that EM lacks capacity to conduct these proceedings and make decisions about his medical treatment, care and residence. It was also ordered on an interim basis that it was in EM's best interests: (i) to be taken from his house to University Hospital, Coventry and Warwickshire; (ii) for force to be used to gain access to his house if necessary; (iii) to stay at the hospital until further order of this court and to be prevented from leaving or self-discharging from hospital should he seek to do so; and (iv) to receive care there according to the clinical judgment of staff. EM was not represented, nor did he participate by any other means, at that hearing.
A return date was listed for 7 July 2022. At that hearing, I was asked to make an order declaring that it was in EM's best interests to be further moved, this time to a nursing home, on the basis that EM was fit for discharge and a nursing home would be preferable to remaining in a ward in an acute hospital. While I granted that order, I required some convincing to do so in circumstances where I was being asked to order a second move for EM in the space of a week, again without any representation of EM. There was no “participation” by EM in these highly intrusive proceedings. No direction to that end had been made under r1.2(2) of the Court of Protection Rules 2017 (“COPR”). There was the following written evidence about his wishes and feelings viz:
i) a statement from the Palliative Care Registrar dated 1 July 2022 about EM's home circumstances, his wish to stay at home and his reluctance to accept care;
ii) a letter from the Palliative Care Consultant dated 6 July 2022 relating to EM's presentation in hospital and his capacity and wish to return home; and
iii) an urgent authorisation by a clinical sister dated 4 July 2022 recording that EM wanted to leave the hospital and thought he could look after himself.
Frankly, this very limited material does not amount to meaningful “participation” in any true sense of the word. In my respectful opinion, this material did not “properly secure” P's interests and position under r. 1.2(2)(e) (which authorises no direction to be made where P's interests and position can properly be secured without one).
During the hearing, I indicated to Mr Lawson that I was minded to give a short judgment on the minimum degree of participation that must be afforded to an individual such as EM on an application which asks the court to authorise his deprivation of liberty. Obviously, such an application is extremely serious and directly engages Article 5 of the European Convention on Human Rights (“ECHR”). I also observed, as regards the transparency order made by Keehan J, that there may be an issue to be grappled with as to whether such an order is technically sound.
This is my judgment.
Participation of EM
The principles
A core principle of the Mental Capacity Act 2005 (“MCA 2005”) is that a decision made on behalf of an individual who lacks the mental capacity to make that decision (known for the purposes of the MCA 2005 and the COPR as “P” 1) must be taken in his 2 best interests (s. 1(5) MCA 2005). In conducting that best interests analysis, s. 4 MCA 2005 places on a statutory footing the imperative necessity of ensuring that the voice of P is carefully listened to. To that end, the person conducting the best interests analysis must take the following steps:
“(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
…
(6) He must consider, so far as reasonably ascertainable –
(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b) the beliefs and values that would be likely to influence his decision if he had capacity, and
(c) the other factors that he would be likely to consider if he were able to do so.”
When an application is brought before the Court of Protection, the court becomes the relevant decision-maker for P and conducts the ultimate best interests analysis on those matters within the four corners of that application. Consistently with s. 4(4), the court must therefore promote the participation of P “as fully as possible in any act done for him and any decision affecting him”. It must also be provided with information, insofar as reasonably ascertainable, about those matters identified in Section 4(6).
Rule 1.2 COPR (headed “Participation of P”) provides the primary procedural mechanism by which the participation imperative in s. 4(4) MCA 2005 is implemented, stating that:
“(1) The court must in each case, on its own initiative or on the application of any person, consider whether it should make one or more of the directions in paragraph (2), having regard to –
(a) the nature and extent of the information before the court;
(b) the issues raised in the case;
(c) whether a matter is contentious; and
(d) whether P has been notified in accordance with the provisions of Part 7 and what, if anything, P has said or done in response to such notification.
(2) The directions are that –
(a) P should be joined as a party;
(b) P's participation should be secured by the appointment of an accredited legal representative to represent P in the proceedings and to discharge such other functions as the court may direct;
(c) P's participation should be secured by the appointment of a representative whose function shall be to provide the court with information as to the matters set out in section 4(6) of the Act and to discharge such other functions as the court may direct;
(d) P should have the opportunity to address (directly or indirectly) the judge determining the application and, if so directed, the circumstances in which that should occur;
(e) P's interests and position can properly be secured without any direction under sub-paragraphs (a) to (d) being made or by the making of an alternative direction meeting the overriding objective.
(3) Any appointment or directions made pursuant to paragraph (2)(b) to (e) may be made for such period or periods as the court thinks fit.
(4) Unless P has capacity to conduct the proceedings, an order joining P as a party shall only take effect –
(a) on the appointment of a litigation friend on P's behalf; or
(b) if the court so directs, on or after the appointment of an accredited legal representative.
(5) If the court has directed that P should be joined as a party but such joinder does not occur because no litigation friend or accredited legal representative is appointed, the court shall record in a judgment or order –
(a) the fact that no such appointment was made; and
(b) the reasons given for that appointment not being made.
(6) A practice direction may make additional or supplementary provision in respect of any of the matters set out in this rule. …”
Rule 1.2 is supplemented by PD 1A on “Participation of P”, which begins by reciting “the importance of ensuring that P takes an appropriate part in the proceedings and the court is properly informed about P…” (para 1) before noting as relevant that:
“2. To this end, rule 1.2 makes provision to –
(a) ensure that in every case the question of what is required to ensure that P's “voice” is properly before the court is addressed; and
(b) provide flexibility allowing for a range of different methods to achieve this,
With the purpose of ensuring that the court is in a position to make a properly informed decision at all relevant stages of a case.
…
7. If the court concludes that P lacks capacity to conduct the proceedings and the circumstances require that P should be joined as a party, the order joining P as a party shall only take effect on the appointment of a litigation friend or, if the court so directs, on or after the appointment of an accredited legal representative. This enables steps to be taken and orders to be made before P becomes a party. During that period P's participation can be secured and the court can seek relevant information in any of the ways set out in rule 1.2(2)(b) to (e).
…
9. An accredited legal representative is defined in rule 2.1. When such representatives exist one can be appointed whether or not P is joined as a party and this may be of assistance if urgent orders are needed, particularly if they are likely to have an impact on the final orders (e.g. an urgent order relating to residence).”
In considering how P's participation is to be facilitated in any given case, the court will therefore consider whether to join P as a party and to appoint a litigation friend to act for him or, alternatively, to appoint a “Rule 1.2 representative”. This in turn requires...
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