Court of Protection judge hands down key ruling on joining P as party

A Court of Protection judge has handed down the latest major judgment on whether P must be joined as a party to proceedings in deprivation of liberty cases where they are in supported living or their home and so outside the Deprivation of Liberty Safeguards regime.

Mr Justice Charles’ ruling comes after the President of the Court of Protection, Sir James Munby, last year sought in Re X [2014] EWCOP 25 to establish a streamlined procedure to deal with a surge in applications following the landmark Supreme Court judgment in Cheshire West.

Sir James concluded that in a non-controversial case such a procedure was possible under which P was not joined as a party. This was contained in Practice Direction 10AA to the COP Rules.

The Court of Appeal subsequently concluded that they did not have jurisdiction to determine the appeals over Re X. However, the three judges – Lady Justice Black, Lady Justice Gloster and Lord Justice Moore-Bick – all observed (obiter) that they considered it necessary, presently, in all applications for welfare orders that will authorise a deprivation of liberty for P to be made a party and so a litigation friend must be appointed for P.

Mr Justice Charles subsequently heard ten test cases where welfare orders were sought under s. 16(2)(a) of the Mental Capacity Act 2005.

He noted how the Court of Appeal did not address issues that were relevant to the implementation of their conclusion that P must always be a party, “namely (a) must the litigation friend be an independent person or can a family member or friend be appointed, (b) must a solicitor be instructed by a litigation friend who does not have a right to conduct litigation or a right of audience and (c) can the applications be disposed of without an oral hearing.”

In Re: NRA the judge summarised his conclusions as follows:

"1. P does not have to be a party to all applications for welfare orders sought to authorise, and which when they are made will authorise, a deprivation of P’s liberty caused by the implementation of the care package on which the welfare order is based.

2. In two of the test cases before me I have made orders that reflect that conclusion and my conclusion that the procedural safeguards required by Article 5 [of the European Convention on Human Rights] are (and are best) provided in those cases by appointing a parent of P as P’s Rule 3A representative.  As such, that parent as a continuation of the dedicated and devoted support given by P’s family to P and directed to promoting P’s best interests, in a balanced way, can best provide (a) the court with the information it requires about the care package and P, and (b) P’s participation in the proceedings. Also, that parent can and in my view will monitor the implementation of the care plan and so initiate any challenge to it or review of it that the parent considers should be made in P’s best interests.

3. I do not have a test case before me in which (a) P has not been joined as a party and the Official Solicitor has not agreed to act as P’s litigation friend, and (b) the appointment of a family member or friend as P’s Rule 3A representative without joining P as a party is not an available option. Such a test case or cases should be listed for hearing.

4. In contrast to the Court of Appeal in Re X and subject to further argument in such a test case or cases, I consider that the way in which the Court of Protection can at present best obtain further information and P’s participation in such cases is for it to exercise its investigatory jurisdiction to obtain information through obtaining s. 49 reports or through the issue of a witness summonses. This keeps the matter under the control of the court rather than invoking the necessity of appointing a litigation friend with the problems and delays that history tells us this entails and will entail and I have concluded is, or shortly will be, not fit for purpose.

5. I do not for a moment suggest that absent further resources being provided there will not be problems and delays in taking the course referred to in paragraph (4). Also, and importantly, I recognise that it would be focused on Article 5(1) and would not provide for monitoring on the ground until it is repeated from time to time for that purpose. But, the appointment of a litigation friend will also not provide that monitoring.

6. In such cases the argument advanced by the Secretary of State before me that a Rule 3A representative identified by the local authority be appointed shows that if this was a practically available option it would replicate the input that I have decided can be provided by an appropriate family member or friend and so satisfy the procedural safeguards required by Article 5 and common law fairness in non-controversial cases without joining P as a party.

7. That replication is an obvious solution that will provide the necessary safeguards more efficiently and at less expense than either:

i. the making of orders for s. 49 reports and the issuing of witness summonses perhaps coupled with more frequent reviews, or

ii. joining P as a party.

8. So I urge the Secretary of State and local authorities to consider urgently, and in any event before a test case or cases of this type are before the court, how this solution can be provided on the ground.”

Lee Parkhill, a barrister at 4-5 Gray’s Inn Square who represented five of the seven councils involved in the proceedings, said: “Local authorities will no doubt welcome confirmation that P need not be joined as a party to streamlined Re X applications. The court observed that securing a litigation friend and representation for P often causes difficulties, not least because of the limits on the Official Solicitor’s resources. Proceeding with non-contentious Re X applications without joining P will avoid those difficulties, and the resulting delays.  
 
“Mr Justice Charles observed that the number of application made following the Supreme Court’s decision in Cheshire West are well below the thousands that were predicted. One reason for this, the Judge suggested, could be the uncertainties relating to the application process. Hopefully, this judgment will help to facilitate the bringing of applications, which must be made to protect local authorities from claims for damages where there has been an un-authorised deprivation of liberty.”