Re Ve
| Jurisdiction | England & Wales |
| Judge | Charles J |
| Judgment Date | 10 March 2016 |
| Neutral Citation | [2016] EWCOP 16 |
| Court | Court of Protection |
| Date | 10 March 2016 |
| Docket Number | Case Number and initials of P: 12755071 (VE) |
[2016] EWCOP 16
IN THE COURT OF PROTECTION
(Sitting in Open Court)
Mr Justice Charles
Case Number and initials of P: 12755071 (VE)
In the Matter of the Mental Capacity Act 2005
Conrad Hallin (instructed by Blackburn with Darwen Borough Council)
Jason Coppel QC and Rachel Kamm (instructed by the Government Legal Department) for the Secretary of State for Health and the Secretary of State for Justice
Bridget Dolan (instructed by the Official Solicitor) for the Official Solicitor
Stephen Broach (instructed by the Law Society's Legal Services Department) for the Law Society of England and Wales (written submissions only)
Hearing dates: 3 and 4 December 2015 and 13 January 2016
Introduction
This is one of five cases that were listed before me and are the subject of my judgment in Re JM & Others (DoL procedural requirements) [2016] EWCOP 15. As explained in that judgment in this case a friend of VE is available for appointment as VE's Rule 3A representative and, applying my approach in Re NRA & Others [2015] EWCOP 59, I have decided to so appoint her.
The terms of appointment. In argument in JM the point was raised that the applicant authorities had experience of family members and friends finding it difficult to understand what their role as a Rule 3A representative involved and this made some of them reluctant to take on the role or involved discussion about it. To ameliorate this problem it was suggested that the role should be better explained in the order or elsewhere. Gateshead Council helpfully provided me with a standard letter they have prepared to so assist family members and friends.
I agree that this role should be better explained and suggest that the explanation set out below could be considered by the ad hoc Rules Committee and the Court as a starting point for guidance to be attached to and mentioned in orders.
Whilst the Court and the ad hoc Committee consider this I hope that what I have set out will be of some assistance.
Legal aid. My judgment in JM contains a discussion on the availability of legal aid through legal help. My conclusion on that is reflected in the explanatory note.
My suggested explanation is as follows:
EXPLANATORY NOTE FOR A FAMILY MEMBER OR FRIEND APPOINTED AS A RULE 3A REPRESENTATIVE
General
The Supreme Court has decided that the package of care and support provided to P in this case means that P is being deprived of his liberty. If, as is asserted by the applicant authority, P does not have the capacity to give consent to that package of care and support, it needs to be authorised by the Court.
The Court will consider whether that package of care and support is the least restrictive available option to best promote the best interests of P and the application is made on the basis that the applicant authority is of the view that it is.
The Court has appointed you as a Rule 3A representative for P because of your relationship with and knowledge of P and because the Court is satisfied that without causing P any or any unnecessary distress you can assist the Court in reaching its decision by examining what is proposed and being done by the applicant authority from the perspective of P's best interests (rather than your own or those of others).
What you need to do is to consider and decide from that perspective whether P's package of care and support is the least restrictive available option that best promotes P's best interests and then inform the Court what you have decided and what P's wishes and feelings about the package of care and support are
In short, the Court is asking you, as someone who knows the position on the ground, to consider whether from the perspective of P's best interests you agree or do not agree that the Court should authorise P's package of care and support.
This will involve you weighing the pros and cons of that package of care and support, comparing it with other available options and (if appropriate) proposing changes to the applicant authority. For example, if you consider that some of the restrictions it puts in place are unnecessary or inappropriate and should be changed, you should raise this with the applicant authority and, if they do not agree with what you propose, the Court.
If you consider that P has capacity...
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