Jason Coppel KC and Joanne Clement act in the latest test cases before the Court of Protection on deprivation of liberty

The Vice President of the Court of Protection (Charles J) has today handed down an important judgment in the NRA litigation [2015] EWCOP 59. The NRA judgment is available here.

The judge considered a number of test cases on the procedure that should be adopted for the CoP to authorise a deprivation of liberty under section 16 of the MCA. The judgment follows those of the President and the Court of Appeal in the Re X litigation. Charles J considered whether the streamlined procedure set up following Re X should be abandoned or modified and the following issues:-

1. Whether P must always be a party to proceedings (as the Court of Appeal had ruled inRe X)
2. What criteria should be applied to the selection of P’s litigation friend and the degree of independence necessary to ensure that an independent check on P’s treatment is carried out;
3. Whether a litigation friend who does not have the right to conduct litigation or a right of audience can conduct the proceedings without appointing a solicitor; and
4. Whether there must be always be an oral hearing

The following key points arise from the judgment:-

1. There is no requirement to hold an oral hearing in all COP cases where an order authorising a deprivation of liberty is sought. An oral hearing will not be necessary in non-controversial cases (§§99-105).
2. Improvements are suggested to the information to be provided to the Court under the streamlined procedure. Changes to the existing court forms may follow (§§223-229).
3. Whether a family member or friend can be appointed a litigation friend is fact- and case-sensitive and will depend on whether they meet the test in rule 140(1) of the COP Rules and can in a balanced way consider and properly promote P’s best interests. Devoted and responsible family members will have an “interest” in the outcome of the proceedings, but that is not an interest adverse to P. There may be other cases where history shows that a family member or friend is not an appropriate litigation friend because (a) they are not likely to take a balanced approach, or are in dispute with other family members; or (b) the way in which the issue has arisen will mean that the pressures on, or interests of, family members or friends make this inappropriate (§§158-175).
4. There is no requirement for a litigation friend to act by a solicitor. A litigation friend may conduct proceedings, implement decisions, and advance argument on paper and orally before a court (§§125-157).
5. The Vice President disagrees with the obiter comments of the Court of Appeal in Re Xstating that P must be joined as a party to proceedings. The Judge preferred the view of the President, and concluded that P does not have to be a party to all applications for welfare orders sought to authorise a deprivation of P’s liberty. If P had to be a party in all deprivation of liberty applications, he would not have an effective right of access to a court because the reality is that this would not be practical, effective and speedy in practice (see §§176-229).
6. Where there is a family member or friend who can act in a balanced way to promote P’s best interests, they can and should, without making P a party, effectively provide (i) an independent check on arrangements; (ii) the safeguards that an IMCA would provide under the DOLS regime and the obtaining of the information required by section 4(6) of the MCA; and (iii) the safeguards that an RPR provides in keeping an authorisation under review without P being a party. Making P a party would only be a matter of form and would be unnecessary. In most cases, the procedural safeguards required by Article 5 and the common law are best provided by appointing a family member or friend of P as a rule 3A representative for P under rule 3A(2)(c) of the Court of Protection Rules (“the COPR”) (§§230-240).
7. There are practical difficulties in appointing an independent person (such as an IMCA) as a litigation friend or a rule 3A representative, giving existing contractual and funding arrangements and their availability having regard to the other roles they perform. Where there is no litigation friend and no person to act as a rule 3A representative, the way in which the COP can best obtain further information and secure P’s participation in proceedings is for it to exercise its investigatory jurisdiction to obtain information through obtaining section 49 reports or through the issue of witness summonses. A better solution may be through the appointment of independent rule 3A representatives (e.g. IMCAs) if and when the Secretary of State takes steps to make this an available option in practice (presumably by providing additional funding) (§§241-267)
8. As a result of the change in position by the Official Solicitor in the proceedings, there was no test case before the Court to determine the issues in (7) above. Another test case should be brought before the courts to determine this issue (§245).
9. Even assuming that Ps in the streamlined procedure constitute a class for the purposes of Article 14, there is an objective and reasonable justification for not joining them as a party, and no breach of Article 14 (§268).

Jason Coppel KC and Joanne Clement acted for the Secretary of State for Justice.