Re NRA, HR, ML, MJW, VS, EJG, MT, DPW, NR and LM
| Jurisdiction | England & Wales |
| Judge | Mr Justice Charles,Charles J |
| Judgment Date | 25 September 2015 |
| Neutral Citation | [2015] EWCOP 59 |
| Court | Court of Protection |
| Docket Number | Case Numbers and initials of P: 12685425 (HR) 12700041 (ML) 12699640 (MJW) 12683102 (VS) 12701735 (EJG) 11781450 (MT) 12701764 (DPW) 12699703 (NR) 1270184T (LM) |
| Date | 25 September 2015 |
In the matter of the Mental Capacity Act 2005
[2015] EWCOP 59
Mr Justice Charles
Case Numbers and initials of P:
12482534 (NRA)
12685425 (HR)
12700041 (ML)
12699640 (MJW)
12683102 (VS)
12701735 (EJG)
11781450 (MT)
12701764 (DPW)
12699703 (NR)
1270184T (LM)
IN THE COURT OF PROTECTION
(Sitting in Open Court)
Lee Parkhill (instructed by the Solicitor of the London Borough of Hillingdon in SV, the Solicitor for the London Borough of Redbridge in HR, Islington Legal Services for the London Borough of Islington in MT,) Suffolk Legal for Suffolk County Council in EJG and MT and Legal Services Lancashire County Council in LM and NR
Nicholas O'Brien (instructed by County Solicitor for Hampshire CC in NRA and County Solicitor for Hertfordshire CC in MJW and DPW)
John McKendrick (instructed by Guile Nicholas, Steele and Shamash, Odonells and Irwin Mitchell by the Official Solicitor for NRA, MJW, DPW, LM, NR, HR and SV
Jason Coppel QC and Joanne Clement (instructed by the Government Legal Department) for the Secretary of State for Justice
Sir Robert Francis QC and Benjamin Tankel (instructed by the Official Solicitor) for the Official Solicitor
Stephen Broach (instructed by the Law Society of England and Wales) for the Law Society (who did not appear but advanced written submissions)
Hearing dates: 30 and 31 July 2015
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Index
| Heading |
|
| Paragraphs |
|
| Part 1 |
|
| Introduction | 1 to 3 |
| Background | 4 to 22 |
| My approach | 23 to 25 |
| Structure of this judgment | 26 to 30 |
| Part 2 |
|
| Some further preliminary observations | 31 to 52 |
| The jurisdiction of the Court of Protection and the determinative test it applies | 53 to 57 |
| The way in which the provisions of the MCA relating to a care package that deprives or may deprive P of his liberty work | 58 to 70 |
| The impact of the determinative question for the court on whether or not it should make the welfare order | 71 to74 |
| The procedural background and the practical difficulties of appointing the Official Solicitor to act as P's litigation friend | 75 to 86 |
| Legal aid | 87 to 98 |
| Must there be and so will there be or is there likely to be a hearing | 99 to 105 |
| Legal aid conclusion | 106 to 108 |
| The practical difficulties of appointing an independent person as a Rule 3A representative | 109 to 116 |
| Accredited legal representatives | 117 |
| The practical availability and impact of the procedure advanced by the Official Solicitor, the Law Society and the Secretary of State | 118 to 121 |
| The resources of the Court of Protection | 122 to 124 |
| Amelioration of the problems created by a process that makes P a party to all cases and so requires P to have a litigation friend | 125 to 126 |
| Whether a litigation friend who does not have rights of audience can, absent an order of the court authorising him or her to do so, exercise rights of audience and conduct the litigation without appointing a solicitor | 127 to 157 |
| The appointment of family or friends or independent persons who do not have a right to conduct litigation or a right of audience as litigation friends | 158 to 175 |
| Part 3 |
|
| Do the Requirements and Effects mean that P must be a party to ALL applications for welfare orders seeking an authorisation of a deprivation of liberty | 176 to 178 |
| The ECtHR and domestic cases | 179 to 196 |
| Flaws and gaps in the reasoning of the Court of Appeal | 197 to 213 |
| Whether P must be a party and further or alternatively have legal representation and further or alternatively independent representation | 214 to 222 |
| Improvements to the information provided under the streamlined procedure | 223 to 229 |
| The position when there is a family member or friend who could act as a litigation friend or a Rule 3A representative | 230 to 240 |
| The position when there is no such person | 241 to 267 |
| Article 14 | 268 |
| Part 4 |
|
| Overall conclusion | 269 |
Part 1
Introduction
I have ten cases before me seeking welfare orders under s. 16(2)(a) of the Mental Capacity Act 2005 (the MCA). The welfare orders are sought to authorise the deprivation of liberty that, it is common ground, is being, or will be, created by the implementation of the regime of care, supervision, control and support (the care package) upon which the welfare orders are based. If it had been thought that the care packages did not result in a deprivation of liberty it is highly likely that the relevant public authorities would have relied on s. 5 of the MCA and no application to the Court of Protection would have been made.
When the cases were transferred to me they were regarded as test cases on the directions that should be given for their determination and in particular on whether the subject of the proceedings (P) should be a party. As a result of steps taken by the Official Solicitor the position changed in eight of the cases. I shall return to this.
The issues before me were all raised in Re X. The decisions of the President in that case are reported at [2014] EWCOP 25 and 37 and the decision of the Court of Appeal is reported as Re X (Court of Protection Practice) [2015] EWCA Civ 599. The result of those decisions is that:
i) I am faced with persuasive but contradictory obiter dicta on the issue whether P must be a party. On the one hand, the President concluded that in a non-controversial case a streamlined procedure was possible under which P was not joined as a party and this is contained in Practice Direction 10AA to the COP Rules. On the other hand, the Court of Appeal concluded that in all applications for welfare orders that will authorise a deprivation of liberty P must be made a party and so a litigation friend must be appointed for P.
ii) The conflict between these obiter decisions only relates to applications that are presented as, and accepted by the court as being, non-controversial.
iii) The Court of Appeal did not address issues that are relevant to the implementation of their conclusion that P must always be a party, namely (a) must the litigation friend be an independent person or can a family member or friend be appointed, (b) must a solicitor be instructed by a litigation friend who does not have a right to conduct litigation or a right of audience and (c) can the applications be disposed of without an oral hearing. These points have significant impact on issues relating to legal aid and whether a process that requires P to be joined as a party to all applications is likely to work in a manner that satisfies Article 5 and so is fit for purpose.
Background
The issues in the ten test cases and in many like them are an aspect of the fall-out from the majority decision of the Supreme Court in P (By His Litigation Friend the Official Solicitor) v Cheshire West and Chester Council and Another; P and Q (By Their Litigation Friend the Official Solicitor) v Surrey County Council [2014] UKSC 19; [2014] 1 AC 896 (" Cheshire West"). At paragraph 10 of her judgment Baroness Hale points out that:
The facts of the two cases before us are a good illustration of the sort of benevolent living arrangements which many find difficult to characterise as a deprivation of liberty.
The same can be said of the ten test cases before me.
Cheshire West is directed to the objective component of a deprivation of liberty. Although some arguments remain on the impact of the majority view (see for example paragraph 1.20 of the Law Commission Consultation Paper of Mental Capacity and Deprivation of Liberty – the "LC Consultation Paper") there is no doubt that this majority view has the result that the objective test covers a wide range of circumstances and that:
i) that range is much wider than had previously been thought by many to be the case, and
ii) that range includes regimes relating to the care, control, supervision and support of a number of persons (Ps) who lack capacity (and so cannot validly consent to the objective deprivation of liberty) that are obviously and which all (including loving members of their family who have supported and cared for P, often for all of their life) agree are the least restrictive available option to best promote P's best interests.
The range includes cases that are within the Deprivation of Liberty Safeguards (the DOLS) introduced by amendment to the MCA. Authorisations given under the DOLS can be challenged in the Court of Protection under s. 21A of the MCA. However, the range also covers a number of cases that are outside the DOLS. The ten test cases are examples of such cases and so of cases in which the route prescribed by law for authorising the deprivation of liberty and thereby
i) the safeguarding of the Ps, and
ii) the protection of public authorities from action for breach of Article 5,
is a welfare order made by the Court of Protection.
The Supreme Court does not refer to Strasbourg cases that mirror living arrangements such as those in Cheshire West or the test cases before me and I do not know whether or not the lack of such cases is because other parties to the European Convention on Human Rights (the Convention) have not taken the same view as the Supreme Court:
i) on what constitutes, on an objective assessment, a deprivation of liberty for the purposes of Article 5, and so
ii) on what brings Articles 5.1(e) and 5.4 (respectively the need for the deprivation of liberty (detention) to be prescribed by law and the entitlement to take proceedings to challenge the deprivation of liberty speedily and effectively) into play.
These two Articles together provide...
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