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SPOTLIGHT |
A senior Court of Protection judge has handed down two more key rulings on the procedural implications of the Cheshire West judgment on deprivations of liberty. Sophy Miles sets out the main findings.
Charles J has handed down a stinging judgment in Re JM and others [2016] EWCOP 15 – the latest instalment in the sequence that started with Re X [2014] EWCOP 25. (See also Re X [2014] EWCOP 37, Re X [2015] EWCA 2015 and Re NRA [2015] EWCOP 59.
The case concerned the requirements of a process to authorize the deprivation of liberty of adults lacking capacity to consent to their living arrangements, where the statutory scheme set out in Schedule A1 MCA 2005 (“DOLS”) is not available, for example those living in supported living. The only “procedure prescribed by law” for the purpose of Article 5 is an application to the court. New legislation to fill the gap is anticipated in the form of the Law Commission proposals but this is some way off.
All the earlier cases have grappled with the question of the “very essence” of Article 5. What is the right balance between a proportionate and “streamlined” process and procedural safeguards for the vulnerable person at the centre of the case? In particular how can they participate in the process?
In NRA Charles J held that the appointment of a representative under Rule 3A would fulfill the requirements of Article 5, in cases that are uncontentious (and this is an important qualification). He noted that there were some case where there was literally no one available to take on this role and asked for test cases to be listed before him.
The cases of Re JM and others were duly heard on 3 and 4 December and 13 January 2016. He heard from the applicant statutory bodies, the Secretaries of State for Justice and Health and the Official Solicitor. The Law Society was given permission to file submissions.
Charles J reiterated the potential for Rule 3 A representatives – often in the form of advocacy services commissioned by local authorities – to provide the required standards of fairness which the streamlined process needs.
He held that – irrespective of the investigatory role of the COP and the duty of disclosure on applicant authorities – a fair procedure for the purpose of Article 5 and the common law must involve “someone assistance from someone on the ground who considers the care package through P’s eyes” (§140).
The problem is that of availability. He described the case as an opportunity for central government to “face up and constructively address the availability in practice of such Rule 3A representatives” (§17). He concluded that central government had failed to take this up and instead sought to pass the responsibilities to local government and criticised the “avoidant approach that prioritises budgetary considerations over responsibilities to vulnerable people” (§19).
Unsurprisingly he held that the COP should not attempt to direct local authorities to take steps to identify or provide a Rule 3 A representative (§24 and ±102-103). The primary responsibility to put the court in the position where it can meet the minimum requirements of fairness is on central government or on central government together with applicant authorities (§24).
Charles J has therefore taken the following steps in all cases bar one – VE – where a representative became available:
Importantly he held that this order should be made by the COP in similar cases. (§26)
He provided a list of options that could be taken by central government to break the stalemate that will now see government departments joined in potentially hundreds of cases:
In the course of the judgment Charles J:
In a separate judgment, Re VE [2016] EWCOP 16, Charles J endorsed a useful guidance note for family members contemplating acting as Rule 3A representatives, explaining their role and responsibilities.
Sophy Miles is a barrister at Doughty Street Chambers. She can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it.. This article first appeared on the Court of Protection Handbook Blog.