A complete impasse?

August 6, 2015

Ben Troke reports on the latest twist in the Court of Protection and cases of deprivation of liberty in the community.

Re X²?

If you thought that the situation with getting court approval for deprivation of liberty in the community couldn’t get any worse, there is bad news, as another twist takes us further down the rabbit hole. A judge has now described this as “the most serious situation facing a court in recent legal history”

Background

It is starting to get a bit embarrassing for lawyers trying to explain this, so let’s recap:

The European Convention on Human Rights says that anyone lacking capacity to consent to arrangements which deprive them of their liberty (DoL) must have the benefit of due legal process and a right to judicial scrutiny.
The Deprivation of Liberty Safeguards (DoLS), in place since 2009, only provide a process for registered care settings (care homes and hospitals), and so a DoL in this context in any other setting can only be lawful with the approval of the Court of Protection. Around 200 such cases were being dealt with by the court per year.
In March 2014, the Supreme Court judgment in Cheshire West clarified that the definition of DoL in this context was effectively far wider than had previously been appreciated (resoundingly overturning a Court of Appeal judgment led by Lord Justice Munby, which had narrowed the definition). Now, many tens of thousands of cases of DoL in the community would need to be authorised by the court.
To deal with this, Lord Justice Munby in his role as President of the Court of Protection (ironically) convened an unconventional consolidated case management hearing in June 2014. A large number of individual cases were collectively brought before him, as well as umpteen interested parties, such as the Secretaries of State for Justice and Health, the Law Society, and ADASS (Association of Directors of Adult Social Services). In judgments in August and October 2014, referred to as ‘Re X’, he made comments about the kind of ‘streamlined’ process that could be put in place for the court to deal with the anticipated scale of cases without, in his view, unduly cutting corners. Most controversially, he said that it was acceptable for court proceedings to determine the lawfulness of P’s DoL without P necessarily being a party, and without a hearing i.e. all on the papers alone, with all the evidence coming only from the public body responsible for the DoL.
Reflecting these judgments, in November 2014 the court produced and implemented a new court form (COPDOL10) and a new practice direction (10AA) providing for a streamlined process, commonly known as ‘Re X’, in these terms – P would not be a party to proceedings unless they want to be.
Two individuals whose cases had been in the Re X collective directions hearing then appealed against LJ Munby’s Re X judgments, arguing that it was procedurally unfair that proceedings could deprive them of their liberty without them being a party. The appeals were heard over two days in February 2015.
On 16 June 2015 the Court of Appeal published an unconventional judgment. They were critical of LJ’s Munby’s approach in the Re X hearings generally, describing these as judicial musings rather than making orders applicable to individual cases, but as such this meant that they, in turn, did not feel that they had jurisdiction to hear an appeal in any individual case (especially since both individual appellants had, in fact, been a party to the proceedings that dealt with their own cases, and so the appeal on the point of principle was a bit too abstract). But all three judges went on to say that they would have agreed that LJ Munby was wrong, and P should be a party to any proceedings relating to a deprivation of their liberty, at least under the current system.
Just a few days later, a new court rule (CoPR 3A) came into effect on 1 July 2015 which requires the court to consider whether joining P to proceedings is necessary, or whether P’s interests can be properly represented and protected in some other way, for instance through involvement of advocacy or addressing the judge, or by appointment of an (as yet non-existent) ‘accredited legal representative’. If P is joined as a party, s/he needs to have a litigation friend – i.e. someone to conduct the proceedings for them, and to give instructions to any lawyer representing P – and proceedings cannot carry on until a litigation friend is identified. Of course, any litigation friend must be willing and able to act competently and fairly for P, and the court rules provide that they must not have any interest which is adverse to P.

DJ Marin – 8 July 2015

This is a deeply practical, not an abstract issue, and this proved to be the stumbling block when a group of ‘Re X’ applications were listed together for a directions hearing and came before District Judge Marin a few days ago, on 8 July 2015, in MOD & Ors (Deprivation of Liberty) [2015] EWCOP.

Of the nine cases, only one had been able to identify a litigation friend willing and able to act. Referring to recent case law, DJ Marin observed that in many cases a family member may inevitably have an interest that may be adverse to P, as P’s placement and care package may have consequences for the whole family.

The Official Solicitor (who sometimes acts as litigation friend ‘of last resort’) had been invited to join the other eight cases, and had replied in no uncertain terms in a letter to the court:

“…the simple facts are that: 

I am not currently in a position to accept the invitations to act as litigation friend in the referrals in these cases; and,  I am most unlikely, on my current understanding of my budgetary position… to be able to accept invitations to act in more than a relatively small proportion of the total expected numbers of these former streamlined procedure cases.”

We are left with what DJ Marin described as “a complete impasse”:

in many cases P will clearly be at risk of being DoL outside the scope of DoLS, and so must be considered by the court;
in those proceedings, P will have to be a party – following the strong opinions of the Court of Appeal;
P can only be a party when a litigation friend is identified and appointed;
in practice family members may not be willing or able to take on this role (and the limited access to public funding for lawyers to help them doesn’t help), and in many cases may be regarded as being barred by having an interest in the outcome that could be adverse to P;
the Official Solicitor does not and will not have anytime soon anything close to the level of resources required to step in at this scale;
and so – P is recognised as being probably (unlawfully) deprived of liberty and is left in limbo without the possibility in practice of proceedings going ahead to scrutinise and authorise this.

Mindful of the scale of cases affected by this, and the fundamental nature of the rights at stake of each individual patient left in this absurd position, DJ Marin describes in graphic terms that “the ramifications of this are huge. In fact, I cannot think of a more serious situation to have faced a Court in recent legal history”.

What now?

The way out of this catch 22 is not yet clear. DJ Marin has ordered the Official Solicitor (by 22 July) to spell out in more detail why he cannot act at the scale needed. He has stayed the eight cases in front of him in which no litigation friend had been identified, and has transferred them to the Vice President of the Court, Charles J, for an urgent hearing to address and clarify:

1. Whether P must be joined as a party in a case involving deprivation of liberty?

2. Whether the appointment of a Rule 3A representative is sufficient in a case involving deprivation of liberty?

3. If P must be joined as a party, in the absence of any suitable person to act as litigation friend, what should be done in circumstances where the Official Solicitor cannot accept an invitation to act?

4. Whether a family member can act as litigation friend in circumstances where that family member has an interest in the outcome of the proceedings?

5. Whether other deprivation of liberty cases not before the court on this occasion but which raise similar issues to this case should be stayed pending a determination of the issues recorded at paragraphs 1 to 4?

Let’s hope that in giving these generic directions, Charles J heeds LJ Munby’s experience and does it in a way that does not in turn promptly fall foul of the Court of Appeal!

Conclusion

In the meantime:

If a P is DoL in the community, then this continues to be an unlawful DoL unless or until a court order is made. DJ Marin explicitly refused to authorise any DoL in each of these cases, even on an interim basis, holding that the Court of Appeal have been clear that more scrutiny is required than is currently in the Re X paper based process, which was the only evidence before him.
However, as we repeatedly advise, uncertainty about the way the court will process cases cannot justify any lack of engagement or delay by public bodies in taking to court cases in which they are responsible for suspected or likely deprivations of liberty in the community.
Where an application to court needs to be made, our strong advice is to continue to prepare the necessary evidence promptly, and make the application as soon as possible in any event.
In doing so, the expectation should be that P will be joined as a party, and extra effort should be made to identify any possible litigation friend – ideally either not a family member, i.e. an Independent Mental Capacity Advocacy (IMCA) for example, or taking care to establish that they clearly have no adverse interest to P.
Whatever changes may be made to the system in the short to medium term as the courts continue to struggle with this, the essential evidence required by the Re X paperwork will continue to be the bare minimum, and time spent gathering this will not be wasted. Fundamentally, it would continue to be a significant concern if any local authority or clinical commissioning group responsible for care packages in the community cannot say for each case:

(i) which of them are for people who lack capacity to consent to them, and are being implemented in their best interests;

(ii) which they consider constitute a DoL and why;

(iii) that these have been tested against any less restrictive options;

(iv) that P’s own views, values and beliefs, and the views of those engaged in caring for P and interested in his welfare have been fully canvassed and taken into account;

(v) that this is all reflected in an appropriate and up to date care plan; and

(vi) if P is DoL on the basis of being of “unsound mind”, that there is objective and current medical evidence of this.

The evidence that will be required for a court to authorise any DoL is, essentially, the evidence of appropriate care planning, and the same basic requirements will also remain in the long term under the proposals recently published by the Law Commission, though these are unlikely to come into effect any sooner than 2018.

In the meantime, all eyes turn to Mr Justice Charles to find a practical way out of the rabbit hole. We will keep you posted of developments, and if you’d like to discuss this, and how we can help to get community DoL cases to court for authorisation, please get in touch.

Ben Troke is a partner at Browne Jacobson. He can be contacted on 0115 976 6263 or This email address is being protected from spambots. You need JavaScript enabled to view it..