Is the stream-lined procedure for dealing with certain deprivation of liberty cases back on track? Nicholas O'Brien analyses a recent ruling by the Vice-President of the Court of Protection.
In Re NRA and others  EWCOP 59 (25 September 2015) Charles J has given a detailed judgement which restores the effectiveness of the streamlined process for authorising non-contentious deprivations of liberty. He also identifies improvements that can be made in the evidence submitted by local authorities. This process is necessary for those who lack capacity and whose care requires restriction on their liberty. It is also necessary for local authorities who seek to be protected from claims for damages.
One of the effects of the Supreme Court decision in P (By his litigation friend the Official Solicitor) v Cheshire West and Chester Council and Another; P & Q (By their litigation friend the Official Solicitor) v Surrey County Council  UKSC 19;  1 AC 896 “Cheshire West” was that the Court of Protection, local authorities and health authorities have been faced with the prospect of processing enormous numbers of cases where mentally capacitated adults are being cared for in supported living or even their own homes.
These situations fall outside the regime of urgent and standard authorisation [Mental Capacity Act 2005, Schedule A1 and 1A]. That process is essentially administrative: involving a social work and mental health assessment followed by an administrative decision. Disputes can be referred to the Court of Protection: s21A. There is a complex regulatory regime to ensure independent scrutiny and support for the person affected, using Relevant Persons Representatives (RPR) and Independent Mental Capacity Advocates (IMCA).
The only other mechanism which can be used to protect the Article 5 rights of those who lack capacity and who may be being deprived of their liberty is an order under s16(2)(a) Mental Capacity Act 2005: see s4A. The volume of such cases led to the President seeking to develop through what amounted to a forensic symposium [Re X and others (Deprivation of Liberty)  EWCOP 25 and in Re X and others (Deprivation of Liberty) (Number 2)  EWCOP 37], a procedure set out in COP PD10A Part 2. This prescribes a pre-proceedings consultation process and then detailed provision as to what must be filed by the local authority as evidence in support of the order sought under s16(2)(a). That included evidence that consultation had taken place with any deputies and close family, the care plans and evidence that P lacked capacity. The application has to be made on Form COPDOL10. The process and the recruitment of District Judges with specific responsibility for considering the applications on paper was designed to resolve cases where appropriate without a hearing or the need for evidence from other parties or the joining of P as a party.
The President’s decisions in Re X (above) were appealed. The Court of Appeal declined to determine the appeals on the basis that there was no properly constituted judicial process and decision: Re X (Court of Protection Practice)  EWCA Civ 599. Nevertheless the members of the Court then gave judgments in which they set out why in their opinion P had to be a party to the proceedings. They declined to consider whether the appointment of representatives under COP Rules 2007 rule 3A which was due to come into force on 1 July 2015 made any difference.
The effect on the work of the COP was immediate. The DJ’s began to adjourn the cases into court and the Official Solicitor wrote to the Court explaining that he was unable to agree to accept being appointed as litigation friend in so many cases at once as his office did not have the capacity to do so. Faced with the judgments of the Court of Appeal that P should be a party in all cases and a problem as to how P could be represented given the position of the OS and the possibility that rule 3A representatives had not been considered by the Court of Appeal, DJ Marin adjourned 10 cases to Charles J as the Vice President of the Court of Protection: MOD &Ors (Deprivation of Liberty)  EWCOP 47. The remaining cases were stayed.
Charles J joined the Crown, the Official Solicitor by virtue of his office and the Law Society as parties and sought information about the resources which would be necessary and available. The hearing took place in open court on 30-31 July 2015 and judgment running to 269 paragraphs was handed down on 25 September 2015. Shortly before the hearing in July the Official Solicitor agreed to act in seven of the cases and in principle on an 8th subject to funding being confirmed. This threatened to render the hearing as academic as that in Re X.
However, in at least two cases there was a live issue as to whether:
(a) P needed to be joined and if so would a family member be suitable to act as litigation friend; or
(b) The family member could or should be appointed as a rule 3A representative.
(c) Whether there needed to be an oral hearing to consider the merits at this stage and at any review.
In cases where the effect of the DJ’s orders and the Official Solicitor’s agreement to act at that stage allowed final orders to be made there was the issue as to what would happen at reviews and how should those reviews be conducted.
The result is that the hearing was constituted to be an effective test case.
An important consequence of the way that the re X litigation unfolded is that both the judgments of the President and the Court of Appeal were obiter and not binding on Charles J . However, as the cases before him were an effective test case, his decision is binding on the District Judges who are responsible for considering applications under the streamlined procedure.
Charles J’s approach
The Secretary of State as funder of the OS’s department, the COP and Legal Aid did not identify that any more resources would be made available under those budgets to fund the implications of the Court of Appeal’s decision and Central Government was not proposing any further resources to fund the IMCA services across the country as part of its duty under s35(1) Mental Capacity Act 2005. [17-19, 95, 118-119]
Charles J clearly approached the case on whether in these circumstances requiring P to be a party would enable P rights under Article 5 to be safeguarded in a manner which was practical, effective and speedy. He did this by looking at the effects of implementing the different options before him. [Para 3 iii) and 24-25]. He agreed with one proposition advanced on behalf the Official Solicitor namely, that the Convention guarantees rights of access to the court that are practical and effective not theoretical and illusory: .
He also made it clear that the role of family members has to be recognised in the decision making process as they have often been instrumental in achieving the planned care for their relative and if they are content it is a real indicator that the plan is in the best interests of P. His admiration for such relatives and his sensitivity to their feelings was manifest: [10-11]
In deciding whether P needs to be a party he noted that:
(a) Historically most of the work of the Court of Protection is non-contentious and necessary property and affairs application and it is not suggested that fairness requires that P is always a party [35-37];
(b) Most welfare decisions do not require any court process at all because of s5 MCA 2015 [39-40];
(c) Where the process leads to an objective deprivation of liberty authorisation is needed either through the court or urgent/standard authorisation.
(d) All welfare decisions including those involving a deprivation of liberty are based on a best interests assessment which must identify that the arrangements are the least restrictive available option that best promotes P’s best interests: 
(e) In effect the same people are involved in preparing a care package whether it gives rise to a deprivation of liberty. ;
(f) Accordingly most cases of deprivation of liberty are non-controversial and independent investigation will verify that those on the ground including family members who have endorsed the plan have identified what is needed and that it is the least restrictive option. ;
(g) No system of checks will be perfect 
(h) There will be cases where independent skilled and experienced investigation will reveal that what is described as non-controversial and in the best interests of P may be neither and there may be issues of capacity which take it outside the jurisdiction of the Court of Protections .
(i) It was difficult to discern in the majority of cases how the formality of making P a party and appointing a relative who knew enough about P to be his litigation friend would “add value” as they would probably have been involved in the decision under review or be closely involved and sympathetic to those family members who were involved in that decision: [45-48]
(j) The Official Solicitor had been able to take the 8 cases and would be able to take more by persuading the solicitors he would instruct to undertake preliminary work (previously done by staff within the OS’s department) before funding was secured. In effect solicitors were being asked to do work for free. However, the OS acknowledged that this was merely postponing the point at which his department would reach “saturation point” and accept more referrals [75-83]
(k) The effect of this is that the process of reviewing deprivations of liberty would soon cease to be speedy, practical and effective and therefore not fit for purpose, if P was always a party and needed a litigation friend,  who was not usually to be found within P’s network of family and friends as the OS and Law Society contended.
(l) Legal Aid through Legal Help was not a resource which would be regarded as effective means of funding representation for P and his litigation friend even when the means test and cap on new starts was not an obstacle to availability. 
(m) Legal Aid for full representation was also of limited utility if there was no need for a hearing and assumed that the means and merits test could be satisfied. He concluded that will not be regularly and promptly granted. 
(n) Legal costs will be a drain on P’s resources at the first hearing and reviews if he has to be a party and his litigation friend needs a solicitor and he does not receive public funding. [97-98]
(o) He rejected the proposition that there was any requirement in either Convention or common law jurisprudence for an oral hearing even if there was no controversy. [99-104] Indeed the Law Society who advanced the argument most strongly conceded that where P was legally represented a consent could be submitted for the hearing and review to be dealt with on the papers. Such a situation undermines the prospect of a full certificate in non-contentious cases as listing would be a contrivance. ;
(p) The evidence did not support the proposition that there was any prospect of independent people i.e. not family members or friends, being appointed as rule 3A representatives. There is a well-recognised shortage of IMCAs to undertake the existing roles and the local authorities confirmed that their local services were not in a position to assume the role on a routine basis. This was not a solution which was fit for purpose: [114-116]. He also noted that although the function was made formal by the rule changes the Court of Protection had previously been able to request information on behalf of P.
(q) Accredited legal representatives do not yet exist and therefore are not an effective option to involve P as if a full party ;
(r) A litigation friend who lacks rights of audience does not have to instruct a solicitor. There is nothing in either the Legal Services Act 2007, the Civil Procedure and Court of Protection Rules which prevents a lay person from acting as litigation friend and themselves preparing documents and advocacy for P. [135, 140, 146, 156];
(s) The same problems in securing independent people to take on the role of litigation friends exist as for rule 3A representatives. .
(t) Family and friends will often be intimately linked with the best interest decisions under scrutiny by the court but that does not mean that COP Rule 162 disqualifies them from acting as litigation friends. They will know P’s needs and views best and will often through their informal advocacy and negotiation have a detailed knowledge of the available options. They will want to participate in the reviewing of the care package and plans.
(u) The reasoning of Baker J concerning RPR in AJ v A Local Authority  EWCOP5 at paras 82-91 and 137 about the difficulties of appointing close relatives as RPR does not preclude such people acting as litigation friends (or RPRs). They may find it difficult but the issue is whether the individual is able to take an objective independent view about best interests. This involves taking account of the views of P and any objections he may articulate. It means nevertheless being prepared not to advance a case which is hopeless. [171-172]. Appointment becomes case sensitive rather than a matter of principle especially where such people are often best placed to make a judgment: [173-175];
(v) The Convention case law under Article 5(4) required Charles J to consider what procedural safeguards party status or other such provisions brought to the decision making process and the right to be a party as such. Therefore what was needed was dependent on the concrete situation being reviewed: [185-187].
(w) In particular he relied on the margin of appreciation to domestic courts to enable them to make the relevant procedural arrangements to secure the good administration of justice and protect the health of the person concerned: RP v UK  EHCR 1796 para 65 and whether if P cannot conduct his own proceedings the court will nevertheless be properly and sufficiently informed of the competing factors relating to the case before it and so be able to carry out an effective review: YA v Central v NW London NHS Trust and others  UKUT 0037 (AAC).
(x) The required procedural safeguards are there to secure the Article 5 right and must not impair the very essence of it:  which is that P should have the opportunity to be heard in person or through some form of representation. This means that the Court needs to have available to it:
a. P’s wishes and feelings and the matters required by s4(6) MCA 2005 without causing P unnecessary distress;
b. A critical examination from the perspective of P’s best interests and with detailed knowledge of the P the pros and cons of a care package, and whether it is the least restrictive available option;
c. The review of the implementation of the care package and changes in P’s health and behaviour. 
(y) Different types of deprivation of liberty do not need the same process or procedure: a position Charles J says was supported by Hale B in Cheshire West at para 57 and 104 [195, 205];
(z) The Court of Appeal’s reasoning was flawed because:
a. It failed to consider the practical consequences and how joining P will address the minimum safeguards;
b. It treats all deprivations of liberty as being the same; 
c. It fails to recognise that all engaged in the process must adopt a best interests /welfare approach 
d. It relied on secure accommodation cases where welfare was relevant but not paramount 
e. It is more appropriate to consider cases where a person with capacity consent to the deprivation such as voluntary patient where the Article 5 requirements are met by ensuring the patient is making a properly informed choice and they have access to courts if they change their minds. ;
f. It did not articulate that IMCAs are only necessary when there is no person other than one engaged in a professional or remunerated role, in providing the care or treatment.
g. It did not recognise that independent litigation friends and solicitors will only become involved when there is an application or review scheduled and not in between times and legal aid will lapse and need to be applied for again.
Thus in a closely reasoned approach he came to the conclusion that the Court can proceed to approve deprivations of liberty without a hearing or appointment of a rule 3A representative or making P a party. This is predicated on there being interested relatives or friends who when consulted could make a meaningful response.
This leaves open the situation where there is no such person making such a contribution. In such cases it is strongly arguable that the Court will need to consider the appointment of a rule 3A representative or joining P and inviting the OS to act. That was the view of the Court of Appeal in Re X . However, Charles J consistent with the rest of his analysis considered that better alternatives existed such as reports under s49 MCA 2005 and the issuing of witness summonses; and if the resources were made available the appointment of rule 3A representatives: [241, 261-264].
Changes to the process
In line with his emphasis on the practical the judge invited submissions on improvements which could be made to the streamlined process. While the forms may be changed in the meantime lawyers and social workers should address these points in their evidence:
There should be a summary of the care plan identifying:
- The level of supervision [1:1, 2:1 etc];
- The times and duration of supervision;
- Use of sedation and restraint
- Assistive technology;
- What would happen if P tried to leave;
The evidence should also address issues which identify that the plan represents the least restrictive option and the timing of reviews including:
- The transition plan if changes are envisaged and how it will be reviewed in light of P’s response;
- The date the placement began, where P was before and why the move took place;
- Recent or intended changes to the care package plan and the reason for the change;
- Why identified sedation or restraint is needed and when used (circumstances and frequency);
- The nature of any tenancy agreement and who has the authority to sign for P;
- Why is it thought that the case is not controversial and can be dealt with on the papers;
- Participation of family and friends over the years as carers, support and their approach to P’s care and whether and why it is thought that support is or is not in P’s best interests;
- Whether and why family and friends support the care package;
- The willingness of family or friends to be a litigation friend or 3A representative, if needed, and their ability to keep the care package and P’s response under review (to be considered against the history of P’s care);
- What other options have been considered and why the care package advanced has been chosen as the appropriate one;
- Conflicting interests within the placement (e,g. potential clashes with other residents);
- An analysis of, and reasons for any restrictions e.g. restraints, sleeping arrangements, medication, restrictions on contact, changes to care package). This might be supported by carers' records;
- Direct information from the carers.
His ultimate conclusion was that where there is a family member or friend who can act in a balanced way to promote P’s best interests they can provide the independent checks referred to by Baroness Hale and the Court of Appeal, and achieve the same result as an IMCA or RPR provides under DOLS without P being a party. There is no need to make P a party with that relative/friend as a litigation friend. .
However, by making such a person a Rule 3A representative it would mean that it would formally identify a person who is properly interested in P’s welfare who can apply for reconsideration of the order; and they could be directed by the Court to monitor the implementation of the care package to inform the reviews and the making of applications for discharge or variation [164, 233]
From the view of local authorities this decision is welcome. The evidence filed by the authorities based on their experience led the judge to accept that the cost of applications is tens of millions of pounds. The Law Commission and LGA (in its submissions to the Treasury’s Financial Review) estimate the cost to authorities across the country is £172m. These costs would have increased substantially if P had to be a party and family and friends could not be appointed as rule 3A representatives.
However, the judge did acknowledge that some of the concerns that led to the Court of Appeal’s decision are well founded [230-263] and there are going to be cases where it would be better for there to be improved resources (in terms of funding for independent Rule 3A representatives and legal aid). He urged the funding authorities to come up with a solution so that even where there are no suitable family members or friends the Court of Protection can provide a process which is fit for purpose and protect the vulnerable. [266-267]
Nicholas O'Brien is a barrister at Coram Chambers. He was instructed by Hampshire and Hertfordshire County Councils in this case.