In the heart of Peterborough

Re (1) JM (2) AMY (3) JG (4) MM (5) (VE) [2016] EWCOP 15 (Charles J) 11 March 2016

17 Mar 2016

In November 2014 the Court of Protection launched a streamlined process for managing court authorised deprivations of liberty. This process followed guidelines set out in judgements from the President of the Court of Protection.

Described as the Re X procedure, the process was designed to enable the court to decide applications for court authorised deprivation of liberty on the papers only, without the need for a hearing. In other words, where there was no dispute. However, certain safeguards had to be met. The safeguards are:

  • Consultation must take place with the patient and all relevant people in their life so that they have an opportunity to express their views about the intended application
  • The patient has not expressed the desire to participate in the court proceedings
  • There is no objection to the to the application from the patient and relevant family members
  • There are no other important factors that would make the application unsuitable for the streamlined process

All of the above stipulations were intended to make an application for deprivation of liberty one that does not contravene the patient's Article 5 and 6 Human Rights.

The streamlined process was in great part the product of a Supreme Court decision of Cheshire West which clarified the definition of ‘deprivation of liberty’. The definition of deprivation of liberty being “a person under continuous supervision and control and not free to leave”, the pool of people potentially deprived of their liberty was considerably widened. This was because the new test takes no account of disability. Whether you are disabled or not is not a factor in the test. No consideration should be taken of a disabled person’s living arrangements, and whether they are able to consent to them. They may be happy in the arrangements made for their care within the limits of their own understanding. They are still deprived of their liberty. As Lady Hale said, “a gilded cage is still a cage”.

Not surprisingly, there has been a colossal increase in cases to the Deprivation of Liberty Safeguards system (DoLs) and Court of Protection.

The Court of Appeal in Re X expressed concern about the streamlined procedure and whether the patient needs to participate in the proceedings. The Court of Appeal could not overrule the President’s proposal about non-participation, saying that the Practice Direction that resulted from his ruling had to be the subject of a judicial review. However, in July 2015 a new rule 3A was introduced to the Court of Protection Rules requiring the court to consider how the patient’s participation in the proceedings should be secured.

In the latest case in this saga, a judgment handed down on 11 March 2016, Charles J has highlighted a further glitch in the system of streamlining deprivation of liberty welfare orders. Where the court has deemed it appropriate for the patient’s views to be articulated (there being no family or friend available to take up the mantle) a mental capacity advocate could in theory be appointed under rule 3A. In an earlier decision, Re NRA, Charles J doubted whether resources were available for such an appointment. In the present case the court required the Secretary of State (for the MoJ and DoH) to present evidence of the availability of rule 3A advocates. It was argued that local authorities had the resources to make the appointments. A representative for local authorities argued to the contrary and said first there was no requirement for a rule 3A advocate to be appointed and second that there was no statutory duty for local authorities to do so in any event. A ‘Catch 22’, as Charles J described it.

Charles J also concluded that the Re X streamlined procedure does not meet the minimal safeguards required for deprivation of liberty welfare orders unless a rule 3A representative is appointed (having regard to the common law and Article 5). He stayed the test cases before him where no rule 3A advocate could be found and gave directions for the parties to identify other means for achieving the desired outcome. He identified ways in which the impasse could be broken:

  • Relevant government departments could enter into contracts with private providers of mental health advocacy services
  • Provide additional resources to local authorities or the Official Solicitor to procure advocacy services
  • Government could set up its own pool of advocates
  • Make changes to Legal Aid
  • Additional resources for those providing s.49 reports so that visitors could investigate the proposed care arrangements
  • Government re-argues the Cheshire West case back at the Supreme Court (this would mean tipping the 4:3 majority view the other way)

The outcome to this dilemma is a resources one. It is very rare for cases to be returned to the Supreme Court for reconsideration. Charles J’s judgment acknowledges the financial constraints placed upon central and local government. However, the impact of Cheshire West in terms of the numbers of applications could have risen to as much as 30,000 per annum. Those eligible to be processed through the Re X streamlined procedure are likely to represent a large number. It is predicted that in over half of such cases no rule 3A advocate will be available for appointment. Fortunately, the number of cases of this type do not reflect the statistics but the number of stayed cases is likely to increase considerably if rule 3A advocates cannot be found.

Carl Fender