Re X applications and representation

Lee Parkhill examines a Court of Protection ruling by Mr Justice Charles on Re X applications and representation for P.

In Re KT & Ors [2018] EWCOP 1 Charles J considered how to secure P’s involvement in applications to authorise a deprivation of liberty in the community. Lee Parkhill considers the judgement.

The judgment follows on from Charles J’s judgment in in Re JM [2016] EWCOP 15, where Charles J stayed applications for welfare orders to authorise a deprivation of liberty because no family member or friend was available for appointment as P's rule 3A representative [1].

In Re JM Charles J also joined the Crown to the proceedings, on the basis that central government, and in particular the Ministry of Justice, is primarily responsible for providing the resources needed to enable the Court of Protection to adopt an Article 5 compliant and fair procedure.

Since the judgment in Re JM (in March 2016), the number of stayed cases has grown to over 300.

In Spring 2017, letters sent were sent by the Government Legal Department to the applicant local authorities in the stayed cases. The letters said that that Ministers had agreed to provide funding to HM Courts & Tribunals Service to enable greater use of Court of Protection visitors, who court report to the court in the absence of a rule 3A representative.

Charles J was highly critical of the Ministry of Justice’s approach. The learned Judge was dissatisfied with the evidence provided by the Ministry. The Judge accepted that the solution advanced by the Secretary of State was sufficient to protect P’s rights. However, he said the Secretary of State had not adequately addressed the problem and that the Secretary of State’s solution would only be a temporary one.

Role of Court visitors

The central issue that Charles J had to determine was whether the solution advocated by the Secretary of State was adequate, i.e. whether the appointment of a visitor to prepare a s. 49 report provides a fair and Convention compliant procedure.

It was not suggested that visitors should be appointed as rule 3A representatives. So, the question was whether, without making P a party, the appointment of a visitor to write a report is a good enough option to provide the required procedural safeguards. 

Charles J concluded that the appointment of a visit is sufficient to protect P’s art. 5 rights.

The Judge referred to his decision in Re NRA [2015] EWCOP 59, where he explained the role of an independent person in community DOL applications. There, Charles J said the independent person must:

(a) elicit P's wishes and feelings and make them and the matters mentioned in s. 4(6) of the MCA known to the Court without causing P any or any unnecessary distress;

(b) critically examine from the perspective of P's best interests, and with a detailed knowledge of P, the pros and cons of a care package, and whether it is the least restrictive available option; and

(c) keep the implementation of the care package under review and raising points relating to it and changes in P's behaviour or health.

The Judge concluded that it is possible for a visitor to provide sufficient information to satisfy the minimum requirements.

In a schedule to his judgment, Charles J set out a template order for the instruction of a visitor in the community DOL applications.

Options for P’s involvement - order of preference

The court also considered the order of preference between the various options for securing P’s involvement (i.e. a family member / friend being appointed as a rule 3A representative, the instruction of a visitor, or the appointment of a professional rule 3A representative). It was common ground between the applicant authorities and the Secretary of State that the first choice should be the appointment of a family member or friend as P's Rule 3A representative. However, the local authorities and the Secretary of State disagreed about the preference where a family member, or friend, is not available. The local authorities said that in such cases the court should appoint a visitor. Whereas the Secretary of State said the court should first look to appointment a professional rule 3A representative.

Charles J expressed reservations about setting any strict order of precedence. However, the learned Judge expressed the view that the appointment of a professional who could act independently as a rule 3A representative and carry out regular reviews of P's placement would, in most cases, be likely to preferable to the appointment of a visitor.

That said, the Judge pointed out that, currently, there is no body of professionals to appoint as rule 3A representatives. Again, the Judge was critical of the Secretary of State’s evidence which he said did not show that such a resource is likely to be available as a preferred option in a significant number of cases.

The non-availability of professionals to act as rule 3A representatives led the Judge to conclude that if he had to choose an order of preference as between the appointment of a professional rule 3A representative and a visitor, he would select a visitor.

But, the Judge added that the court should be informed about the availability of any professional who is willing to act as a rule 3A representative. That would allow the court to assess whether that person would be a better option than instructing a visitor to report.

A temporary solution

Although the appointment of visitors is sufficient to safeguard P’s rights in non-contentious DOL applications, Charles J expressed doubt as to whether visitors were the long-term solution. The Judge was particularly critical of the Secretary of State’s evidence as to the availability of visitors to perform this new role. He said:

‘I am sorry that I have to conclude that the evidence in these cases shows that it can be expected that history will repeat itself and the Secretary of State will persist in taking an avoidant and unconvincing "pass the parcel" approach to the problems which he has a statutory duty to resolve alone or through a constructive approach with the local and other public authority applicants.

The Judge went on to say:

‘Accordingly, the present resources that the Secretary of State has indicated will be provided is based on an inadequate assessment and it is highly likely that those resources:

i) will at best only provide a short-term fix, 

ii) will not to provide an ongoing resource that will enable the COP, to apply a fair and Convention compliant procedure in the applications and reviews that should and would be made and reviewed each year in cases such as those that have been stayed pursuant to JM, and so

iii) absent further resources being provided, another backlog of these cases will build up or if that is avoided they will create significant delays in other types of applications to the COP.’

Unfortunately, Charles J’s concerns are likely to be well-founded. Local authorities will welcome the court’s approval of the role of visitors, but this is unlikely to be the last time the court has to consider arrangements for involving P.

Lee Parkhill is a barrister at 7 Bedford Row, specialising in public law and mental capacity law.