"These five cases are examples of cases in which the procedure to be adopted by the Court of Protection (COP) was left open in my judgment in Re NRA  EWCOP 59,  MHLO 66. That judgment contains the references to the decision of the Supreme Court in Cheshire West and Chester Council v P  UKSC 19,  MHLO 16 and of the President and the Court of Appeal in Re X (Court of Protection Practice)  EWCA Civ 599,  MHLO 44, which are the essential background to NRA. In short, the five cases were chosen as cases in which it was thought that there was no family member or friend who could be appointed as a Rule 3A representative. That is no longer the position in VE and my reference to the test cases in this judgment are to the remaining four."
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
In re JM and others (Incapacitated Persons) (Deprivation of Liberty: Appointment of Representatives)
2015 Dec 3; 4; 2016 Jan 13; March 10
Mental disorder — Incapable person — Deprivation of liberty — Local authorities applying for deprivation of liberty authorisations — Incapacitated persons not party to proceedings and no family member or friend available to act as representatives — Whether minimum procedural safeguards would be met without appointment of representatives — Whether Court of Protection to direct local authorities to provide representatives — Whether cases to be adjourned for resources to be identified for provision of representatives — Mental Capacity Act 2005 (c 9), s 16(2)(a) — Court of Protection Rules 2007 (SI 2007/1744), r 3A (as inserted by Court of Protection (Amendment) Rules 2015 (SI 2015/548), r 5)
In each of five test cases the applicant local authority sought a welfare order under section 16 of the Mental Capacity Act 2005 authorising the deprivation of liberty of an incapacitated person in circumstances where the application was not controversial but where there was no family member or friend who could be appointed as a representative pursuant to rule 3A(2)(c) of the Court of Protection Rules 2007. At issue was the question whether the provision of a rule 3A representative was a matter for central government or whether, as the Secretary of State (through officials at the Ministry of Justice and the Department of Health) maintained, it was a matter for the Court of Protection to direct applicant local authorities to provide or identify such persons. The evidence in the test cases indicated that a high proportion of deprivation of liberty (“DOL”) cases were likely to be presented as non-contentious and that in over half of such cases it was likely that there would not be a family member or friend who could be appointed as the incapacitated person’s rule 3A representative. That had led to a “resources-led Catch 22” situation for the Court of Protection, and for the incapacitated persons and their families, because neither central nor local government were offering to create or to try to create a practically available resource to enable the court to meet the minimum procedural requirements by appointing professional rule 3A representatives. In one of the test cases a friend became available and was appointed as the rule 3A representative so that reference to the test cases in the judgment were to the remaining four cases.
On the local authorities’ applications—
Held, applications stayed. A deprivation of liberty (“DOL”) procedure in which the incapacitated person was not joined as a party and there was no hearing would meet the minimum procedural safeguarding requirements provided a rule 3A representative was appointed. It was however not appropriate for the Court of Protection to direct the applicant local authorities to take steps to provide or identify a person or persons whom the court could so appoint since: (i) the authorities had no statutory duty to do that; (ii) there was at present no available pool of people who were ready, willing and able to accept such an appointment by the court; (iii) absent constructive discussion with and help from central government there was no reasonable prospect that any such pool of people would or should be created by the authorities within a reasonable time-scale or at all; (iv) the authorities had expressly confirmed that, unless they had a statutory duty to do so, they would not; and (v) it was unlikely that other local authorities would take a different view. The primary responsibility to provide a resource that enabled the Court of Protection either to make such appointments or to otherwise meet the minimum procedural requirements in such cases fell on the Secretary of State, or on the Secretary of State together with the applicant authorities. So, in the four cases in which there was no appropriate family member or friend who could be appointed as a rule 3A representative an order would be made: (i) joining both the Ministry of Justice and the Department of Health as parties (unless an assurance was received that neither would seek to argue that the Crown was divisible and it was the other who should act, when only the Ministry of Justice would be joined); (ii) inviting the parties to take steps to either (a) identify a suitable person who was ready, willing and able to accept immediate appointment as the incapacitated persons rule 3A representative, or (b) identify an alternative procedure that was actually available to the Court of Protection to take to meet the minimum procedural requirements; (iii) staying the applications pending the identification of a practically available procedure that enabled the court to adopt a procedure that met the minimum procedural requirements; and (iv) giving all the parties liberty to apply to lift the stay and generally (paras 23–26).
In re NRA, Ct of Protection approved.
Surrey County Council v P (Equality and Human Rights Commission intervening)  AC 896, SC(E) and In re X (Court of Protection: Deprivation of Liberty) (Nos 1 and 2)  1 WLR 227, CA considered.
Conrad Hallin (instructed by Gateshead Council Corporate Services and Governance) for JM; (instructed by Legal Services, Tower Hamlets London Borough Council) for AMY; (instructed by Hill Dickinson LLP) for JG; (instructed by Legal Services Division, Manchester City Council, Manchester) for MM; and (instructed by Blackburn with Darwen Borough Council) for VE.
Jason Coppel QC and Rachel Kamm (instructed by Solicitor, Department of Health) for the Secretary of State for Health and (instructed by Treasury Solicitor) for the Secretary of State for Justice.
Bridget Dolan (instructed by Official Solicitor) for the Official Solicitor
Stephen Broach (instructed by Head of Legal Services, Law Society) for the Law Society of England and Wales, by written submissions only.
Reported by Jeanette Burn, Barrister