Re X and Others (Deprivation of Liberty)

JurisdictionEngland & Wales
JudgeSir James Munby
Judgment Date07 August 2014
Neutral Citation[2014] EWCOP 25
Docket NumberCase No: 12488518 and 28 others
CourtCourt of Protection
Date07 August 2014
Re X and others (Deprivation of Liberty)

[2014] EWCOP 25

Before:

Sir James Munby PRESIDENT OF THE COURT OF PROTECTION

Case No: 12488518 and 28 others

COURT OF PROTECTION

(In Open Court)

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Alexander Ruck Keene and Mr Benjamin Tankel for the Official Solicitor as advocate to the court

Ms Joanne Clement for the Secretary of State for Health and the Lord Chancellor and Secretary of State for Justice

Mr Stephen Cragg QC for the Law Society of England and Wales

Ms Alison Ball QC and Mr Andrew Bagchi for the Association of Directors of Adult Social Services

Mr Neil Allen for Cheshire West and Chester Council, Surrey County Council and Northumberland County Council

Mr Michael Dooley for Cornwall Council

Ms Bethan Harris for Worcestershire County Council

Mr Conrad Hallin for Sunderland City Council

Ms Natalia Perrett and Ms Emily Reed for Barnsley Metropolitan Borough Council

Mr Simon Burrows for Rochdale Metropolitan Borough Council

Mr Michael Mylonas QC for Surrey Downs Clinical Commissioning Group

Mr Jonathan Auburn for NHS Sheffield Clinical Commissioning Group

Mr John McKendrick for Nottinghamshire Healthcare NHS Trust

Mr Jonathan Butler for KW (a patient)

Ms Katie Scott for AS and GS (patients)

Mr Joseph O'Brien for PMLP (a patient)

Mr Ian Wise QC, Ms Martha SpurrierandMs Alison Fiddy filed written submissions on behalf of Mind

Hearing dates: 5–6 June 2014

Sir James Munby, President of the Court of Protection:

1

On 19 March 2014 the Supreme Court gave judgment in Surrey County Council v P and others (Equality and Human Rights Commission and others intervening), Cheshire West and Chester Council v P and another (Same intervening) [2014] UKSC 19, [2014] PTSR 460, [2014] COPLR 313. I am not here concerned to analyse the Supreme Court's decision, nor to explore its implications as a matter of substantive law. I am concerned solely with a narrower but more pressing issue: the practical and procedural implications for the Court of Protection of what all informed opinion agrees is the large increase in its case-load which will follow in consequence of the Supreme Court's decision.

2

Just how large that increase will turn out to be is not yet clear. In part it may depend upon the extent to which otherwise purely private care arrangements – for example, the care at home by the family of an elderly relative or spouse suffering from dementia – come within the ambit of Article 5 because of some involvement by the State, whether a local authority or the court. That raises potentially complex issues which, I emphasise, I am not here concerned with. I mention it only because on one possible outcome there could be a large number of such cases adding even further to the Court of Protection's case-load. Be that as it may, and even if that turns out not to be the case, it is clear that there is going to be a very significant increase in the number of cases in the Court of Protection relating to deprivation of liberty ("DoL").

3

In order to address this increase, I arranged for a number of DoL cases to be listed before me for initial directions on 8 May 2014. With the assistance of counsel appearing before me on that occasion, in particular Mr Alexander Ruck Keene who appeared for the Official Solicitor as advocate to the court, I was able to formulate the 25 questions, set out in the Annex to the order I made at the conclusion of that hearing, to be considered at a further hearing I fixed for 5 June 2014. For ease of reference those questions are set out in the Annex to this judgment.

4

At the hearing on 5 June 2014 I had the assistance of a large number of advocates, representing between them, in addition to the Official Solicitor as advocate to the court, the Secretary of State for Health and the Lord Chancellor and Secretary of State for Justice, the Law Society of England and Wales, the Association of Directors of Adult Social Services, Mind, eight local authorities, two NHS clinical commissioning groups, a NHS trust and four individuals. Their submissions were invaluable in illuminating the forensic landscape and pointing the way to the correct answers to the various questions. I am immensely grateful to all of them.

5

The immediate objective, in my judgment, is to devise, if this is feasible, a standardised, and so far as possible 'streamlined', process, compatible with all the requirements of Article 5, which will enable the Court of Protection to deal with all DoL cases in a timely but just and fair way. The process needs, if this is feasible, to distinguish between those DoL cases that can properly be dealt with on the papers, and without an oral hearing, and those that require an oral hearing.

6

In my judgment, that objective is feasible and can be achieved.

7

In contrast to the Family Court, which has a statutory rules committee, the Family Procedure Rules Committee, the Court of Protection has no statutory rules committee. The rule making power for the Court of Protection is vested (see section 51 of the Mental Capacity Act 2005) in the President of the Court of Protection, with the agreement of the Lord Chancellor. An ad hoc, non-statutory, committee ("the Committee") has recently been set up to review the Court of Protection Rules 2007 ("the Rules") and associated practice directions and forms. At its first meeting on 14 July 2014, the Committee identified as a major issue for consideration the question of whether Rule 73(4), which provides that "Unless the court otherwise orders, P shall not be named as a respondent to any proceedings", requires amendment.

8

This is a preliminary judgment, setting out briefly my answers to those of the 25 questions which require an early decision if the objective I have identified is to be carried forward. It concentrates on the issues directly relevant to what I will call the 'streamlined' process. It sets out no more than the broad framework of what, in my judgment, is required to ensure that the 'streamlined' process is Article 5 compliant. Additional, detailed, work needs to be carried out as soon as possible by the Court of Protection in conjunction, where appropriate, with the Committee.

9

A further judgment will follow in due course, elaborating on my reasons for deciding as I have and dealing with the questions – in particular questions (6), (8) and (10) – not dealt with in this judgment.

(1) Can an official of the Court of Protection authorise a deprivation of liberty of an individual, or must such authorisation be judicial in order to comply with Article 5(1) ECHR?

10

Any authorisation of a DoL by the Court of Protection should be by a judge, not a court officer.

11

Article 5(1) does not itself require a judicial determination, but anyone lawfully deprived of their liberty in accordance with article 5(1) is entitled to a "speedy" decision "by a court" of the lawfulness of the detention. The decision must be judicial, so the "court" for this purpose must be a judge and not an official. There is therefore no purpose in creating a procedure (which in any event would require amendment to PD3A) involving initial decision in a DoL case by a court officer. Even if otherwise appropriate (which it is not) it would simply create additional, duplicated and unnecessary work for the Court of Protection.

(2) Can an initial application to the Court of Protection to authorise the deprivation of liberty of an individual be determined on the papers (with a right to direct an oral hearing and/or for any person or body involved to request an oral hearing or review) or does it require an oral hearing in order to comply with Article 5(1) ECHR?

12

Neither Article 5(1) nor Article 5(4) nor the Rules requires that the initial determination must involve an oral hearing. There are cases where, assuming a sufficiently robust process (see further below), the initial determination can properly be made on the papers, so long as there is an unimpeded right to request a speedy review (reconsideration in accordance with Rule 89) at an oral hearing.

(3) If an initial application can in principle be determined on the papers, how is the Court of Protection to identify which cases should be dealt with on the papers and which at an oral hearing?

13

I identify below in answer to questions (4) and (20) the material which will need to be put before the court in any 'steamlined' process in a DoL case. 'Triggers' indicating the need for an oral hearing and the inappropriateness of dealing with the application on the papers would be:

i) Any contest, whether by P or by anyone else, to any of the matters referred to in paragraphs 35(ii)-(vii) below.

ii) Any failure to comply with any of the requirements set out in paragraph 35(viii) below.

iii) Any concerns arising out of information supplied in accordance with paragraphs 35(ix), (xiii) and (xiv) below.

iv) Any objection by P.

v) Any potential conflict with any decision of the kind referred to in paragraph 35(x) below.

vi) If for any other reason the court thinks that an oral hearing is necessary or appropriate.

(4) What are the irreducible matters that must be addressed in evidence before the court before it can make an order satisfying the requirements of Article 5(1)(e) ECHR?

(5) What form should such evidence take (including medical evidence)?

14

Compliance with the three Winterwerp [ Winterwerp v Netherlands (1979) 2 EHRR 387] requirements is essential to ensure compliance with Article 5: (i) medical evidence establishing unsoundness of mind, (ii) of a kind warranting the proposed measures and (iii) persisting at the time when the decision is taken.

15

Professional medical opinion is necessary to establish unsoundness of mind, but where the facts are clear this need not involve expert psychiatric opinion (there will be cases where a general practitioner's evidence will suffice).

16

The...

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