DOLS – Should P always be made a party in non-contentious welfare cases?

Ten cases were heard before Justice Charles (Deputy president of the Court of Protection) on the same issue:

Whether in non-contentious welfare cases where the proposed care arrangements amounted to a deprivation of liberty, should P always be a  party? The decision was No.

The Cases

The ten cases sought Welfare Orders under Section 16 (2)(a) of the Mental Capacity Act 2005 to authorise a deprivation of liberty created by the implementation of the care packages in the various cases. These ten cases concerned issues raised in Re X and Others (Deprivation of Liberty [2014] EWCOP 25 regarding before J Munby as to whether  P  should always be a party in non contentious deprivation of liberty cases and the disapproving obiter comments by the Court of Appeal in   Re X (Court of Protection Practice) [2015] EWCA 599 in which the Court held that P should always be a party. However, as the Court of Appeal concluded that J Munby in the procedure he adopted acted outside his powers the issue was undecided.

Is this good news for P?

Whether this is good news for P depends on whether P’s family can represent P’s interests as effectively as envisaged by CHARLES J.

The central issue

The issue at hand for CHARLES J was to consider whether in non-contentious welfare cases where the proposed care arrangements amounted to a deprivation of liberty P should be always be a  party.

Decision

In  Re X and Others (Deprivation of Liberty [2014] EWCOP 25 Justice Munby had ruled that in non-controversial cases a streamlined procedure was possible under which P  was not joined as a party. This was reflected in  Practice Direction10 AA to the COP rules this was in addition.
In a 269 paragraph Judgment, Sir Justice Charles held:

1. P does not have to be a party to all applications for Welfare Orders sought to authorise, and which when they are available authorise, a deprivation of P’s liberty caused by the implementation of the care package in which a Welfare Order is based;
2. That procedural safeguards required by Article 5 are, at best, provided in those cases by appointing a parent of P as P’s  Rule 3A  representative.( Rule 3A of the Court of Protection rules) came into force on the 1 July 2015. The rule requires the Court to consider in each case, either on its own initiative or on the application of any person whether it should make one or more of a number of directions relating to the participation of P. That may include:
   1. P being a party;
   2. P’s participation being secured by the appointment of a representative whose primary function is to give P a voice by relaying information as to P’s wishes and feelings;
   3. Specific provision for P to address (directly or indirectly) a Judge to determine the application; or
   4. No direction or alternative direction (meeting the overriding objective) if P’s interest and position can be properly secured. This includes under Rule 3A that direction may be made by appointing an accredited legal representative to represent P. This is a practice drawn from the Mental Health Review Tribunal Rules.

The basis for the decision (in summary)

The basis for Justice Charles’ views regarding P’s participation is as follows:

1. The parent or other family member is best placed to provide the Court with information it requires about the care package and P;
2. The parent or family members can best provide the Court with information regarding P’s participation in the proceedings;
3. The parent can, and in the view of Law Justice Charles, will monitor the implementation of the care plan and so initiate any challenges to it or review of it that the parent considers that it should be in P’s best interests.

Justice Charles didn’t have before him a case where P had not been joined as a party and the Official Solicitor had not agreed to act as P’s Litigation Friend and where the appointment of a family member or friend as P’s Rule 3A representative without joining P as a party was not an available option. He encouraged such a test case or cases to be listed for hearing; and
he did not feel that it was appropriate to necessarily appoint a Litigation Friend given the problems and delays that might entail where the Court might be best placed to obtain further information and P’s participation in such cases by the Court citing its investigatory jurisdiction to obtain information through either Section 49 Reports or through Witness Summonses.

He also identified in his Judgment the difficulties of the Official Solicitor and/or a Litigation Friend being appointed in attempt to secures P’s participation in all these non-contentious cases because there was clearly no evidence from the Government or Legal Services Commission that the Official Solicitor, IMCA or  Litigation Friends were going to be resourced. There was also no evidence that they were going to resource  accredited legal representatives.
He also noted that under Section 21A challenge to a DoLS  legal aid was available but there was no sign that the Government wished to increase eligibility for Legal Aid outside of that

He pointed out in the Judgment that the Secretary of State put to him that if the Local Authority was able to identify a Rule 3A representative as a practical available option it would replicate the proposed input provided by the family member or friend and so satisfy procedural safeguards required by Article 5 and common law  fairness in non-contentious cases without joining P as a Party. Charles J took the view that would be a more efficient and cheaper option than either joining P as a party or the making of section 49 orders.

Interestingly in the last paragraph in his Judgment he urges the Secretary of State of Local Authority to consider urgently the issue of resourcing the other options proposed under Rule 3A.