Re X (Court of Protection Practice)  EWCA Civ 599,  MHLO 44
This case concerned the hearings arranged by Munby LJ, the President of the Court of Protection, in relation to devising a streamlined and minimally Article 5 compliant process for the anticipated higher numbers of court applications following Cheshire West. (1) Whether the Court of Appeal has jurisdiction to hear an appeal from the Court of Protection depends on whether there was a "decision" (MCA 2005 s53), which must mean a decision determining an issue arising between parties (involving or about the person concerned) rather than decision made on a hypothetical basis. (2) The President's judgments contained no appealable "decision" as the relevant issues had not arisen in the appellants' cases. (2) (Obiter) In theory the person concerned need not always be a party to deprivation of liberty proceedings if his participation can reliably be secured by other means, but given the tools presently available in our domestic procedural law, the person concerned must always be a party, so the streamlined "Re X" procedure was not compliant with Article 5. (Detailed summary on case page.)
This case concerned the hearings arranged by Munby LJ, the President of the Court of Protection, in relation to devising a streamlined and minimally Article 5 compliant process for the anticipated higher numbers of court applications following the Cheshire West decision. There had been a directions hearing on 8/5/14, a substantive hearing on 5/6/14, and judgments on 7/8/14 and 16/10/14, but no court order. The hearings related to procedure in general terms rather than the situation in individual cases, and the judgments answered some of 25 questions covering procedural issues that could arise in DOL applications.
The two permitted grounds of appeal (the 'relevant issues') related to (a) whether the person who may be deprived of his liberty must always be joined as a party (the President said not and this was appealed by AC, GS and the Law Society); (b) whether the initial decision and subsequent review require an oral hearing (the President said not necessarily and this was appealed by the Law Society). The Official Solicitor sought permission to bring his own appeal in relation to whether a litigation friend may conduct litigation without a solicitor. Only the first issue was considered at the appeal hearing.
(1) Whether the Court of Appeal has jurisdiction to hear an appeal from the Court of Protection depends on whether there was a "decision" within the meaning of MCA 2005 s53. The equivalent wording for appeals from the High Court is "judgment or order". It was argued that decisions are not the same as judgments or orders, and that the President's rulings were decisions. Having considered the Act, the Rules, and case law, the Court of Appeal decided that a s53 "decision" must mean a decision determining an issue arising between parties (involving or about the person concerned) rather than decision made on a hypothetical basis.
(2) On the facts, there had been no decision: the President had lacked jurisdiction to determine the relevant issues as they had not been, and were not likely to become, a real issue for AC or GS (both had been joined as parties, had a litigation friend appointed, and were legally represented at an oral hearing).
(3) It was argued that the issues might have arisen as real issues in other cases (making the President's judgment a "decision" in relation to those issues) but this was rejected as it was unknown if the issues had arisen, and this step would be wholly artificial.
(4) Some modern appellate decisions have adopted a more expansive approach (entertaining points of law which though academic or hypothetical are of general public interest) but those decisions did not relate to cases where the lower court itself was only ever considering academic or hypothetical issues.
(5) Various other jurisdictional possibilities were considered but discounted: the proceedings could not be characterised as an application for declaratory relief (where the claimant does not need to have a subsisting cause of action against a defendant), or as being under s52 (concerning practice directions), or as a judicial review (and additionally the Court of Appeal refused to reconstitute the appeal as a judicial review, for example against the subsequent Practice Direction), or as case management (as the judgment was made in a vacuum wholly divorced from the cases). If the legal representatives had properly addressed their minds to how to structure the proceedings, the proceedings could potentially have been brought as representative proceedings (CPR 19.6) or under a group litigation order (CPR 19.11).
(6) The Law Society's eligibility to be a party and an appellant was questioned but in any event its appeal had no more standing than that of AC and GS.
(7) The illegitimate approach adopted by the President was unnecessary when a well-established method to regulate procedure was available, namely a Practice Direction of the type that was made in November 2014.
(8) Even if the Court of Appeal had jurisdiction it would exercise its discretion not to entertain the appeal, as the appeal was entirely academic and merely involved a decision which was designed to inform the drafting of procedural rules.
(9) The President's determinations were merely his opinions and cannot be regarded as authoritative.
(10) In relation to jurisdiction to hear the appeal, it was disappointing that the Official Solicitor as advocate to the court did not provide impartial objective submissions by testing the arguments advanced by those parties who were interested in the outcome. The advocate to the court should not seek to persuade the court to a particular conclusion except to prevent an unsound decision, and it is not desirable for counsel who represents a party also to act as advocate to the court.
(B) Party status (obter)
(1) The President's analogies with cases involving children were of very limited assistance as Cheshire West invites comparison instead with adults who do have capacity.
(2) It is generally considered indispensable in this country for the person whose liberty is at stake automatically to be a party to the proceedings, and the President's decision to the contrary for adults without capacity would require very firm foundations to be regarded as acceptable.
(3) Article 5(1) requires that proceedings provide "clearly effective guarantees against arbitrariness given the vulnerability of individuals suffering from mental disorders and the need to adduce very weighty reasons to justify any restriction of their rights" (MS v Croatia (No 2)  ECHR 196). What is essential is that the person concerned "should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation" (Winterwerp v Netherlands 6301/73  ECHR 4).
(4) In theory the person concerned need not always be a party to the proceedings if his participation can reliably be secured by other means.
(5) But the streamlined procedure could not be relied upon to achieve it. Article 5 requires a greater guarantee against arbitrariness, as the procedure is (a) heavily dependent on the person concerned conveying a wish to be joined in the proceedings, or opposition to the proposed arrangements (he is unlikely to be able to make an informed decision) or someone else taking these points on his behalf (that person may lack time or expertise or judgement); and (b) depends entirely on the reliability and completeness of the information transmitted to the court by, in many cases, the very person/organisation seeking authorisation for to be deprived of his liberty (the possibility of a conflict of interest is clear). The procedure compares unfavourably with the DOLS regime, particularly because of the role of the relevant person's representative.
(6) Given the tools presently available in our domestic procedural law, the person concerned must be a party in all deprivation of liberty proceedings.