Re KT  EWCOP 1
"These are four test cases that were stayed in accordance with my decision in Re JM  EWCOP 15,  MHLO 31. ... There are now over 300 such cases in which the MoJ and DoH (alone or together with the relevant applicant local authority or other public body) have not been able to identify a professional who the COP could appoint to act as P's Rule 3A representative. ... The first issue raised in these test cases is whether a welfare order approving a care plan advanced as being uncontroversial and which authorises any DOL caused by its implementation will have been made by a procedure that satisfies the minimum procedural requirements of Article 5 and common law fairness if P's participation in the proceedings is through the appointment of a general visitor to prepare a report under s. 49 of the MCA and that report supports the making of that welfare order. If the answer to that question is in the affirmative, the following issues arise, namely: (i) What approach should be taken by the COP to choosing this option or other options and in particular the appointment of a professional Rule 3A representative? (ii) What directions should be given to a visitor on what he should do and report on? (iii) Should the Crown be or remain as a Respondent? ... I have therefore concluded ... that periodic reviews by the COP with the benefit of information provided by a visitor meets the procedural requirements."
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The WLR Daily case summaries
In re KT (Incapacitated Persons) (Deprivation of Liberty: General Visitor)
2018 Jan 15Charles J
Mental disorder— Incapable person— Deprivation of liberty— Local authorities applying to lift stay on deprivation of liberty authorisation applications— Incapacitated persons not party to proceedings and no family member or friend available to act as representatives— Whether procedural safeguards met by appointment of general visitor— Whether Court of Protection to appoint visitor and give directions— Mental Capacity Act 2005 (c 9), ss 4(6), 16, 49 — Court of Protection Rules 2007 (SI 2007/1744), r 3A (as inserted by Court of Protection (Amendment) Rules 2015 (SI 2015/548), r 5)
The appointment of a Court of Protection general visitor to prepare a report under section 49 of the Mental Capacity Act 2005 is sufficient to meet the procedural requirements of article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms in a non-contentious application for a welfare order sought to authorise a deprivation of liberty in respect of an incapacitated person where no family member or friend is available to act as the relevant person's representative pursuant to rule 3A(2)(c) of the Court of Protection Rules 2007 (para 34).
Where, therefore, in each of four non-contentious applications by a local authority for welfare orders authorising deprivations of liberty under section 16 of the Mental Capacity Act 2005 in respect of an incapacitated person (“P”) where no family member of friend was available to act as P’s rule 3A representative, the local authority applied for the stay imposed on proceedings to be lifted on the basis that a visitor was to make a section 49 report—
Held, applications granted. The appointment of a visitor by the Court of Protection (“COP”) to write the section 49 report was a fair and Convention compliant procedure because it provided the essence of P's article 5 procedural rights. The COP could give directions to a visitor to assist the court on an application and a review that would enable it to obtain sufficient information to satisfy the minimum procedural requirements and to make welfare orders on the papers without joining P as a party. Accordingly, it was ordered that each of the stays be lifted and that the reports be prepared by visitors in accordance with the directions given by the court (paras 27–31, 95).
Per curiam. The present resources that the Secretary of State has indicated will be made available to provide visitors is based on an inadequate assessment and it is highly likely that those resources: (i) will at best only provide a short-term fix, (ii) will not provide an ongoing resource that will enable the COP to apply a fair and Convention compliant procedure in the applications and reviews that should and would be made and reviewed each year in cases such as those that have been stayed, and so (iii) absent further resources being provided, another backlog of these cases will build up or if that is avoided they will create significant delays in other types of applications to the COP (para 72).
In re NRA, Ct of Protection, and In re JM (Incapacitated Persons) (Deprivation of Liberty: Appointment of Representatives) ., Ct of Protection applied.
Cheshire West and Chester Council v P (Equality and Human Rights Commission intervening), SC(E), In re X (Court of Protection: Deprivation of Liberty) (Nos 1 and 2) ., CA, and In re VE . considered.
No attended hearing and judgment delivered in private after consideration on the papers.
Reported by: Jeanette Burn, Barrister