The latest development in the see-saw law that is deprivation of liberty
The Honourable Mr Justice Charles, Vice President of the Court of Protection, handed down his judgment on 25 September 2015 in the case of NRA & Others  EWCOP 59. The full judgment can be read here (http://www.bailii.org/ew/cases/EWCOP/2015/59.html).
We represented NRA and VS in this case, by their litigation friends the Official Solicitor. A number of local authorities had applied to the Court of Protection to authorise a deprivation of liberty for individuals living in supported living within their area, in accordance with the “streamlined procedure” established after Sir James Munby’s decision in Re X. However, matters were complicated somewhat by the obiter comments made by the Court of Appeal, in considering Sir James Munby’s decision. The Court of Appeal, in essence, did not agree with the streamlined procedure primarily on the basis that P, the subject of the proceedings, should be a party to the proceedings in order to meet P’s Article 5 rights under the ECHR (the right to liberty).
This somewhat threw the newly established procedure into disarray, and a number of cases were referred to Charles J to try and resolve the issue.
Charles J took great care to ensure that his judgment and orders made related to live issues in the cases before him, so as to not potentially receive the same criticism levelled at Munby J by the Court of Appeal.
Ultimately, and taking a very pragmatic view, Charles J preferred the approach taken by Munby J, rather than the Court of Appeal’s, in that P does not need to be a party in uncontested, straightforward cases. If P is not a party, then he does not require a litigation friend, or legal representation. Instead, a family member can, and indeed should, act as P’s representative. The family member could, ideally, be appointed under the new Rule 3A of the Court of Protection Rules, amended earlier this year.
Charles J went on to say that where there is no suitable family member to consult, the court could gather the information by directing a court visitor to report, and/or witness summonses. Even in this situation therefore, P would not be joined as a party or legally represented.
Provided that P’s wishes and feelings are made known to the court, the court is able to critically examine the proposed care package and whether it is the least restrictive option available, and the care package is kept under review, Charles J considered that the procedural safeguards required by Article 5 will be met.
In coming to his conclusions, it was clear that Charles J was mindful of the practical realities of the situation. Since the change in the test for deprivation of liberty brought in by the Supreme Court in Cheshire West, a huge number of adults without capacity are now considered to be deprived of their liberty. Many of these people live in supported living placements where the Deprivation of Liberty Safeguards do not apply. This means that local authorities across the country are having to apply to the Court of Protection to have the deprivations authorised by law. The resource implications of this are significant. Charles J was concerned about adult social care budgets being spent on the court process, rather than on the provision of adult social care. He was also concerned that the Official Solicitor, who often acts as litigation friend to P, would not be able to act in so many cases without an increase in his resources, which is not anticipated. Equally, Charles J was concerned to avoid undue distress or difficulties for P and his/her family by over-complicating the process.
Although this pragmatic approach is entirely understandable, it is usually Parliament that makes these kind of policy decisions, and the judgment is unusual in that sense.
Charles J also made suggestions as to how the streamlined procedure could be improved, and we think it is likely that this will lead to amended application forms.
This all serves to highlight that the Law Commission’s Mental Capacity and Deprivation of Liberty Consultation, currently ongoing, is desperately needed and the sooner conclusions are reached and implemented, the better.