Re X (Court of Protection Practice)

JurisdictionEngland & Wales
JudgeBlack LJ,Gloster LJ,Moore-Bick LJ
Judgment Date16 June 2015
Neutral Citation[2015] EWCA Civ 599
Docket NumberCase No: B4/2014/2849 & 3148
CourtCourt of Appeal (Civil Division)
Date16 June 2015
Re X (Court of Protection Practice)

[2015] EWCA Civ 599

Before:

Lord Justice Moore-Bick

Vice President of the Court of Appeal Civil Division

Lady Justice Black

and

Lady Justice Gloster

Case No: B4/2014/2849 & 3148

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE COURT OF PROTECTION

SIR JAMES MUNBY PRESIDENT OF THE COURT OF PROTECTION

12488518

Royal Courts of Justice

Strand, London, WC2A 2LL

Ms Nathalie Lieven QC & Ms Katie Scott (instructed by Irwin Mitchell LLP) for AC & GS (Appellants)

Mr Stephen Cragg QC & Mr Stephen Broach for the Law Society of England & Wales (Appellant)

Ms Joanne Clement for The Secretary of State for Health and The Secretary of State for Justice

Mr Richard Gordon QC, Mr Alexander Ruck Keene & Mr Benjamin Tankel on behalf of the Official Solicitor

Hearing dates: 17 th & 18th February 2015

Black LJ
1

This appeal concerns the practice and procedure to be adopted in applications to the Court of Protection in deprivation of liberty cases ("DoL cases") following the decision of the Supreme Court 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] AC 896("Cheshire West").

2

The President of the Court of Protection gave two judgments on the subject ("the first judgment" of 7 August 2014 and "the second judgment" of 16 October 2014). It is in relation to aspects of these that the parties appeal. No order was made reflecting the judgments or pursuant to them.

3

Central to the President's judgments and to this judgment is the Mental Capacity Act 2005, to which I will refer as MCA 2005. References to "ECHR" are to the Convention for the Protection of Human Rights and Fundamental Freedoms and "P" is the person whose liberty is at stake unless the context demonstrates otherwise.

The process leading to the President's judgments

4

In view of the unusual path that matters took in front of the President, I need to look in a little detail at what occurred before him.

a) The President's description of the process

5

A good starting point is the President's own description of the exercise upon which he was engaged. The spur was the expectation that the Cheshire West decision would give rise to a large increase in the number of cases in the Court of Protection relating to deprivation of liberty. In the first judgment, the President said:

"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….."

"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 §7, the President explained how rules are made for the Court of Protection and referred to the work of the ad hoc rules committee ("the Committee") set up to review the Court of Protection Rules and associated practice directions and forms. In §8, he went on to say that the judgment:

"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."

7

In the second judgment, the President supplemented and elaborated upon the first judgment. He again commented upon the need for the Committee to give urgent consideration to certain matters. He said:

"35. Each of the matters I have been considering is, for the reasons I have given, within the proper ambit of the Committee. They are all, in my judgment, matters that can properly be regulated by the 2007 Rules. They are all issues which, as it seems to me, require urgent consideration by the Committee, both as a matter of principle and also to achieve the necessary clarity for which [counsel for the Law Society] appropriately called. Some, it may be, might also merit consideration by both the Civil Procedure Rules Committee and the Family Procedure Rules Committee."

8

In §36, the President commented that it was not for him to advise the Committee how to proceed but invited particular attention to features that would need their careful consideration.

b) Further detail in relation to the hearings on 8 May 2014 and 5 June 2014

9

The Official Solicitor provided us with a little more detail of the context for the directions hearing on 8 May 2014 and the substantive hearing on 5 June 2014 ("the June hearing").

10

In early May 2014, HMCTS wrote to a number of local authorities that had made applications to the Court of Protection relating to deprivation of liberty, informing them that the President "has arranged for all these applications to be listed without notice, for a directions hearing in open court on Thursday 8 May", and that the Official Solicitor and the Department of Health had been invited to take part. The local authorities were asked to confirm their attendance, which could be by "collective representation".

11

The Official Solicitor told us that it is difficult now to identify precisely how many applications were in fact before the President. This is unsatisfactory. It does not assist that apparently no order was ever drawn up following the June hearing. Perhaps the best that can be done is to take the order of 8 May and the two judgments as a guide.

12

The order of 8 May is headed with the numbers of thirteen applications and it appears that on that day eight local authorities were represented, as well as one independent provider of care, the Secretary of State for Health, the Official Solicitor and one individual patient. Neither of the applications relating to the two patients who ultimately appealed to this court (AC and GS) had been issued by then.

13

The order gave directions for the June hearing. It provided, inter alia:

"1. The applications before the Court are adjourned to 5 June 2014 to a hearing to be listed before Sir James Munby P in open court (time estimate 2 days) to consider the issues set out at the Annex to this order, and such other issues as have been identified prior to that hearing as requiring resolution as a matter of principle or practice going to the proper procedure for the authorisation by the Court of Protection of deprivations of liberty…..

2. Such other applications for authorisations of deprivation of liberty as are issued by the Court of Protection between today's date and that of the hearing at paragraph 1 are also to be listed for directions at that hearing. The parties to such applications are not required to attend or to make submissions in advance of that hearing, but may do so if advised… "

14

Provision was made in the order for "the parties (and any body given permission to become a party pursuant to [an application to the President on the papers])" to file position statements, evidence and other supporting materials, and skeleton arguments "going to all or any of the issues identified in the Annex to this order". The parties were directed to "use their best endeavours to ensure that there is no unnecessary duplication in [the material filed], including by focusing upon the issues to which they can bring specific expertise and evidence". The order made provision for the filing of bundles, which were not to include "evidence going to the specific facts of individual cases save and to the extent that such is necessary to address the general issues for consideration at the hearing, but shall include an agreed schedule identifying in concise form each individual 'P', the class of case into which they fall (by reference to the classes set out in the Annex to this Order), the core issues upon the application, and the relief sought". I have not found any such schedule in our papers for the appeal.

15

The Annex to the May order began:

"By way of preliminary indication, the Court identified three classes of case giving rise to applications to it for authorisation (some of which may give rise to sub-classes and/or situations where an individual will fall between two classes or sub-classes):

(1) Persons deprived of their liberty by the State who fall within the scope of Schedule A1 to the MCA 2005, but in respect of whom the requirements of Part 9 of Schedule A1 cannot be met for reasons of lack of resources because of the high number of such persons and consequent high volume of assessments which post-Cheshire West are and will be required;

(2) Persons deprived of their liberty by the State who fall outside the scope of Schedule A1 to the MCA 2005 (because they are residing other than in a hospital or care home), with the result that their deprivation of liberty would have to be authorised as giving effect to [sic] an order of the Court of Protection under section 16(2)(a) of the MCA in relation to a matter...

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