Re MOD (Deprivation of Liberty)  EWCOP 47,  MHLO 48
Nine cases which had been issued under the Re X streamlined procedure were listed for directions before DJ Marin. (1) One case (ML) would require a best interests hearing so never really belonged in the Re X procedure, but orders under the Re X procedure would or would potentially have been made in the other cases. (2) The Court of Appeal in Re X had (obiter, and without referring to new rule 3A) decided that P should be a party in every deprivation of liberty case. (3) Party status would entail the need for a litigation friend but, except for an IMCA in one case (MOD), no-one suitable had been identified: (a) in most of these cases, the family may be said to have an adverse interest to the person concerned; (b) there must be a question in every case as to whether family members have the required expertise; (c) the Official Solicitor refused to act as his COP Health & Welfare team was already "fire-fighting" at an unsustainable level owing to budgetary constraints; (d) IMCAs in one borough refused to act without indemnity insurance, which it was hoped would be in place by the end of 2016. (4) The result was that none of these cases could proceed, and neither could hundreds and potentially thousands of others: the judge said he "cannot think of a more serious situation to have faced a court in recent legal history". (5) These cases were transferred to the Vice President of the COP (Charles J) to decide on the following issues: (a) whether P must be joined as a party in a case involving deprivation of liberty; (b) whether the appointment of a rule 3A representative is sufficient in a case involving deprivation of liberty; (c) if P must be joined as a party, in the absence of any suitable person to act as litigation friend, what should be done in circumstances where the Official Solicitor cannot accept an invitation to act; (d) whether a family member can act as litigation friend in circumstances where that family member has an interest in the outcome of the proceedings; (e) whether other deprivation of liberty cases not before the court on this occasion but which raise similar issues to this case should be stayed pending a determination of the issues recorded at paragraphs (a) to (d). (6) The Official Solicitor was ordered to file and serve a statement which would: (a) provide a full and evidence-based explanation of why he cannot cope with the number of deprivation of liberty applications in which he is invited to act as litigation friend; (b) explain in full detail providing evidence where appropriate as to which areas or processes cause him difficulty and why; (c) inform the court when he expects to be able to cope with deprivation of liberty cases and the likely time scale in which he can start work on a case; (d) provide any other information to the court what will assist the court to make decisions in this case regarding the position of the Official Solicitor. (7) The court refused to approve deprivations of liberty on an interim basis because the effect of the Court of Appeal's judgment was to demand a higher level of scrutiny than the information provided under the Re X procedure would permit.