JM & Ors, Re Mental Capacity Act 2005

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 & Others [2015] EWCOP 59. That judgment contains the references to the decision of the Supreme Court in Cheshire West and of the President and the Court of Appeal in Re X 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 general approach taken by the Secretary of State, through officials at the Ministry of Justice (the MoJ) and the Department of Health (the DoH), in these test cases means that it is important to remember that they relate to a class of cases in which a welfare order is sought to authorise P’s deprivation of liberty (“a DOL welfare order application”) and not to such applications in general. That class is where the applicant (usually a public authority) is of the view that the application is not controversial and there is no family member or friend who the COP can appoint as a Rule 3A(2)(c) representative.

It follows that a general approach that is based on the wide powers of the COP that includes other classes of DOL welfare order applications (e.g. when the case is controversial or when there is a family member or friend who can be appointed as a Rule 3A representative) has to be de-coded:

to relate it to the relevant class of case, and so to ones that are presented as being uncontroversial, and which would have been included in the Re X streamlined procedure outlined by the President if it had been approved by the Court of Appeal, and

to assess which of the theoretically wide range of choices is actually available on the ground to the COP either as the primary or alternative procedural route for that class of cases.

This means that it is necessary for me to trace the development of the respective positions and evidence of the parties on the procedural route that the COP should take. This has added to the length of this judgment. In doing so and more generally my reference to the Secretary of State (an indivisible office) is to both the Secretary of State for Justice and the Secretary of State for Health and so to central government.

It is also important to remember that in Cheshire West the Supreme Court has determined that the class of case with which I am concerned involves an objective deprivation of liberty that can only be authorised and thereby made lawful, by a welfare order made by the COP. This conclusion does not provide a label or description for a class of welfare order. Rather, it is a binding conclusion that the position on the ground is that P is being deprived of his liberty which engages:

Article 5 and importantly, as the Court of Appeal’s reasoning in Re X confirms, important principles of the common law directed to ensuring that no-one is unlawfully deprived of their liberty and can challenge it, and so

issues of procedural fairness relating to the imposition of, and the ability to test the lawfulness of, a situation on the ground that amounts to a deprivation of liberty.

A consequence of this conclusion of the Supreme Court is that it has, in a time of austerity, imposed major and perhaps unforeseen difficulties and burdens on those responsible for providing, authorising and monitoring the placement and care of a wide range of vulnerable people and if extra resources (alone or coupled with changes to the underlying statutory framework) are required to meet the procedural safeguards required by the Cheshire West conclusion in DOL welfare applications within the class represented by the test cases either:

those resources have to be provided by central or local government, or

the COP cannot operate a procedure that meets those procedural requirements of Article 5 and the common law and so a procedure that is lawful.

The provision of any such resources is highly likely if not inevitably to be at the cost of something else that can also be said to be important, and in the case of local authorities it is highly likely, if not inevitable, that it would be at the expense of the resources available to them to fund the placement and care of vulnerable people. This is an unhappy prospect but, whilst the Cheshire West conclusion remains authoritative, it is one that has to be faced by central and local government. The COP cannot itself change that conclusion or create extra resources to enable the COP to adopt a procedure that takes it into account.

It is not easy to predict the number of applications and reviews that are within the class to which these test cases are directed. An informal survey was conducted in 2014 by the Association of Directors of Adult Social Services (ADASS) which estimated that there would need to be about 30,000 applications in 2014/15 and 2015/6. The evidence in these test cases and in NRA supports that view if all the necessary applications and reviews are brought. This estimate relates to all DOL welfare order applications and the present test cases represent part of that workload. The evidence in these test cases indicates that a high proportion of such cases are likely to be presented as non-contentious and that in over half of such cases it is likely that there will not be a family member or friend who could be appointed as P’s Rule 3A representative.

So far history does not match such estimates. At present about 90 cases in the class represented by these test cases have been issued and are stayed but for the reasons set out in NRA, and confirmed by the evidence in these cases, this does not provide a reliable guide to the number of cases in that class in which, as a result of the decision in Cheshire West, public authorities need to apply to the COP for a welfare order to authorise a deprivation of liberty.

The existing small numbers of applications and a focus simply on these four cases could found a short term solution (and so a solution for these four cases). Such a solution de-railed the similar cases in NRA as test cases and one of the purposes of these test cases (and my refusal to join P in them and ask the Official Solicitor to act as his litigation friend) has been to enable me to address in the short, medium and longer term the class of cases, expected to be at least in the thousands each year, in which there is no suitable family member or friend who can act as a Rule 3A representative. Naturally, I accept that having done so my task is to make appealable orders in the test cases.

Finally, by way of introduction, I mention that:

the cases and this judgment refer to the minimum procedural safeguards that are required. However it seems to me that an approach that leads to a conclusion that the procedural safeguards that are provided and used clearly meets that minimum is to be preferred to one based on just meeting the minimum,

there are references in the evidence to the Law Commission’s investigation and proposed report as a reason why it is difficult to take steps now. However, it seems to me that the length of the timetable for that report and its implementation means that a “wait and see” approach is inappropriate and, in any event, the Law Commission’s provisional proposals are heavily dependent on the provision of additional resources and so work on that would inform their work and provide necessary resources for the COP, Ps and their families, and

the impact of the Cheshire West conclusion on resources and procedures extends more widely than DOL welfare order applications and, for example, extends to the DOLS and the appointment of IMCAs and RPRs in that process.

As I pointed out in NRA, if professional Rule 3A representatives could be appointed this would satisfy the minimum procedural requirements of a DOL welfare order application and go a long way to meeting the underlying reasoning of the Court of Appeal in Re X.

An obvious potential source for such Rule 3A representatives is the pool or pools of persons from whom IMCAs, RPRs and Care Act advocates (see in particular ss. 37 to 39 (including ss. 39A, C and D) of the MCA 2005 and s. 67 of the Care Act 2014) are or will be appointed. Indeed, the Court of Appeal in Re X made particular reference to RPRs and it was their role that I concluded in NRA could effectively be replicated (and in respect of continual or regular review on the ground bettered) by family members or friends as Rule 3A representatives.

As is well known, the main source of these advocacy services to Ps and others is based on contracts that local authorities have entered into with advocacy providers. My conclusion in NRA was that on the evidence then available those contracts and other sources from which such appointments are and can be made by local authorities did not in practice provide an available source from which professional and independent Rule 3A representatives could now be appointed in DOL welfare order applications.

To enable the COP to meet the minimum procedural safeguards, the primary position of the Secretary of State in NRA was that it would be able to appoint professional Rule 3A representatives when there was no family member or friend who could take on this role. So these test cases were his opportunity to provide evidence to show, as he still submits, that there are available sources from which they could in practice be appointed by the COP.

I am sorry to have to record that in my view the stance of the Secretary of State (through officials at the MoJ and the DoH) in these proceedings has been one in which they have failed to face up to and constructively address the availability in practice of such Rule 3A representatives and so this aspect of the issues and problems created for the COP (and others) by the conclusion in Cheshire West. Rather they have sought to avoid them by trying to pass them on to local government on an approach based on the existence of an accepted possibility rather than its implementation in practice.

In contrast, the applicants before me have taken a constructive and frank approach to the difficulties they face in which they have identified the existing resources and arrangements and so the possibilities that could in theory be adopted or explored if they were responsible for providing extra resources. I am grateful to them.

Sadly, the Secretary of State has sought to take advantage of this constructive approach by asserting that this evidence shows that these and other local authorities could and should exercise their powers to provide the extra resources without:

taking a similar constructive approach on a similar hypothesis (namely by addressing what central government could or should do) or

addressing what (if anything) the Secretary of State would do, or was considering doing, to help local authorities do what he was submitting they could and should do (and so, for example, to reduce harm to the vulnerable that would result from a diversion of local authority resources to meet the minimum procedural requirements).

Naturally, I recognise the existence of significant budgetary pressures and responsibilities on government departments but in my view the approach taken by the MoJ and the DoH is unfortunate.

I also recognise that local authorities are under equivalent budgetary pressures and that they form part of the background to their stance:

that the minimum procedural requirements do not necessitate the appointment of professional Rule 3A representatives, and

that they will not take steps to provide them for appointment by the COP unless they are under a statutory duty to do so.

This has led to a “resources led Catch 22” for the COP, and for Ps and their families, because neither central nor local government are offering to create or to try to create a practically available resource to enable the COP to meet the minimum procedural requirements by appointing professional Rule 3A representatives.

I agree with the primary submission of the Secretary of State in NRA and in these cases, that the Re X streamlined procedure does not meet the minimum procedural requirements but a procedure in which P was not joined as a party and there was no hearing would do so if a Rule 3A representative is appointed for P.

I do not agree with the Secretary of State that it is appropriate for the COP to direct the applicants to take steps to provide or identify a person or persons who the COP could so appoint in these test cases or cases in the class represented by these test cases. The main reasons for this are:

the applicant authorities have no statutory duty to do this,

there is at present no available pool of people who are ready, willing and able to accept such an appointment by the COP,

absent constructive discussion with and help from central government there is no reasonable prospect that any such pool of people will or should be created by applicant authorities within a reasonable time-scale or at all,

the applicants in the test cases have expressly confirmed that as they have no statutory duty to do this they will not do it, and

it is unlikely that other applicant authorities would take a different view.

So, in the four cases in which there is no appropriate family member or friend who could be appointed as a Rule 3A representative I have decided to make an order:

joining both the MoJ and the DoH as parties (but if I receive an assurance that neither will seek to argue that the Crown is divisible and it is the other who should act; I will join only the MoJ),

inviting the parties to take steps to either:

identify a suitable person who is ready, willing and able to accept immediate appointment as P’s Rule 3A representative, or

identify an alternative procedure that is actually available to the COP to take to meet the minimum procedural requirements in the case, and so for example a short term solution for the case (and possibly others in the class represented by the four test cases),

staying the applications pending the identification of a practically available procedure that enables the COP to adopt a procedure that meets the minimum procedural requirements in that case, and

giving all the parties liberty to apply to lift the stay and generally.

In my view, this is an order that can and should be made by the COP in other cases in the class represented by these test cases.

If and when the relevant authorities make such applications in significant numbers, I acknowledge that, absent the provision of relevant resources, the likelihood, if not the inevitability, is that this approach will create a backlog comprising a very large number of stayed cases. Plainly this is unfortunate but it will identify the extent of the problem and why the COP and the applicant authorities have not been able to progress the applications for welfare orders to authorise P’s deprivation of liberty.

In my view, this approach places the problem with those responsible for the provision of resources to resolve it namely central government or central and local government acting together. There are a number of routes that the Secretary of State could take, alone or with local authorities, to provide the necessary solution. They include:

The Secretary of State could do effectively what the MoJ and the DoH assert local authorities can and would do without significant expenditure or difficulty if so directed by the COP, namely entering into contracts with providers of advocacy services to supply a pool of persons who can be appointed as Rule 3A representatives. If entered into with the Secretary of State these would be new rather than varied contracts. But effectively the Secretary of State would be doing what he asserts local authorities can and should do by agreement with providers of advocacy services.

The Secretary of State could assist local authorities to achieve this result by providing additional resources.

The Secretary of State could set up a pool of accredited legal representatives which is a possibility envisaged by Rule 3A made with the concurrence and so support of the Lord Chancellor.

The Secretary of State could provide further resources to the Official Solicitor.

The Secretary of State could make changes to legal aid.

The Secretary of State could provide further resources to enable s. 49 reports to be obtained or to create a wider pool of visitors to enable the COP to instruct them to investigate P’s proposed placement.

Importantly, and further or alternatively, the Secretary of State could take a case back to the Supreme Court and invite it to revisit its decision in Cheshire West.

If applicant authorities decide not to spend time and money on making applications that they know are likely to be stayed that backlog will not be as large and the extent of the problem will be less easy to quantify and less obviously placed at the door of the lack of an available court procedure that meets the minimum procedural requirements.

Naturally, in cases in which an applicant can identify a professional Rule 3A representative who is willing to be appointed as a Rule 3A representative, or an alternative way of meeting the minimum procedural requirements, they could avoid that case joining the backlog.

In the VE case I will appoint the friend who has been identified as VE’s Rule 3A representative and make directions aimed at reducing the difficulties that the applicants (and in particular Gateshead Council) have identified that such appointees have in understanding what they should do. I shall do this in a separate judgment.

In NRA:

I rejected the argument that P must be made a party in every DOL welfare order application, and

I concluded that, in cases in which it was appropriate to appoint a family member or friend as P’s Rule 3A representative to carry out functions directed by the Court, DOL welfare order applications could be determined by making such an appointment and a consideration on the papers (and so without an oral hearing). Naturally, this was subject to the proviso that the paper consideration satisfied the COP that the applications were non-contentious and further directions were not required.

Accordingly, I agreed with the primary argument of the Secretary of State that in a DOL welfare order application that was presented as non-controversial the COP can and generally should not make P a party but should appoint a Rule 3A representative. I reached the following conclusions on the procedural requirements of common law fairness and Article 5 (I have added the emphases in bold):

a better solution, would be the making of orders for s. 49 reports and the issuing of witness summonses, and

a much better solution, would be that suggested by the Secretary of State (namely the appointment of Rule 3A representatives identified by the local authority) if and when the Secretary of State takes steps to make it one that is available in practice.

In NRA I also discussed (a) the resources available to enable the Official Solicitor to act as a litigation friend, which are funded by his budget from the MoJ as the funding department, and (b) the costs of solicitors instructed by the Official Solicitor as P’s litigation friend, which are funded by P or by legal aid (and so in that context also the MoJ as the funding department).

I concluded that the resource problems of the minimum procedural requirement advanced by the Official Solicitor (i.e. making P a party and appointing a litigation friend) were not limited to the resources of the Official Solicitor but extended to the availability of legal aid (see paragraphs 87 to 108) and I concluded at paragraphs 105 to 108 as follows:

This conclusion clearly raised a need to consider whether detailed argument on the legal aid position was necessary because, whatever may previously have been happening in practice, existing practice needed review in the light of that conclusion, in particular by anyone who was arguing for the joinder of P as a party in all cases (or in all cases where there was no family member who should be appointed as a Rule 3A representative).

Those extracts from my judgment in NRA make it clear to the Official Solicitor and the Secretary of State that, absent further evidence establishing that their respective positions on what is required to satisfy the minimum procedural requirements is available on the ground and so in practice, I had concluded that their respective proposals:

were not fit for purpose, and so

if the COP was to adopt them, it would be adopting a procedure that would not satisfy Article 5 or common law fairness and so would be unlawful.

Accordingly, I made it clear that in this next round of test cases both the Secretary of State, the Official Solicitor and the local authority applicants should face up to and address the issue whether the procedural route they were respectively arguing that the COP should take to satisfy the minimum procedural requirements either (a) was practically available, or (b) could and would be made practically available in an appropriate timeframe to provide a process that was fit for purpose rather than one that would or might be fit for purpose if and when it became practically available at some unspecified time in the future.

I gave directions inviting them to do this. The Law Society was a party to Re X and NRA but initially I did not join it as a party to these cases because I thought that the relevant information on the likely availability in practice (rather than in theory) of legal aid to fund solicitors instructed by a litigation friend or a Rule 3A representative would and could be provided by the Official Solicitor and the Secretary of State. But, even after an adjournment for further evidence the practical availability of funding through legal help (for a considerable number of cases) and so the practical application of the explanations of the effect of the relevant regulations provided by the MoJ (and the LAA) was not clear. Accordingly, at the adjourned hearing on 13 January 2016, on its application and without opposition I joined the Law Society as a party on the basis that it could put in evidence and make submissions in writing and the other parties could reply to them in writing (if so advised). This process ended in mid-February.

The position of the applicants. This has been consistent and has been that the COP can adopt a procedure that complies with the minimum procedural requirements without making P a party and without appointing a Rule 3A representative. They submit that what they propose is the only suggested and available procedure that can be said to be “speedy, practical and effective” and so the only suggested and available process that satisfies that aspect of the minimum procedural requirements.

They submit that what they propose also satisfies the remaining minimum procedural requirements. Core points in that argument are that: (a) the COP provides the necessary independent review or check, (b) applicant authorities have a duty of full and frank disclosure, (c) the COP can make a number of directions to obtain more information and can make P a party if it has any doubt about the suitability of a case for a streamlined procedure, and (d) from April 2016 there is the potential for cross-fertilisation of evidence from Care Act assessments and a streamlined procedure. As appears below, I do not accept this part of their submissions. In my view, they run counter to the obiter view of the Court of Appeal in Re X and my analysis in NRA.

The position of the Official Solicitor. This developed during the hearing and I think that his final position was that he was no longer suggesting a solution that met the minimum procedural requirements because he now accepts that the solution he was advancing in Re X and NRA is not available in practice and he did not identify an alternative.

At the first hearing in December 2015, in respect of Ps who did not have a family member or friend who could and should be appointed as a Rule 3A representative, the Official Solicitor’s position mirrored the one he took in NRA, namely that P should be made a party and so a litigation friend (if necessary of last resort and so the Official Solicitor) should be appointed. Initially, he did not address the source of legal aid funding that he maintained would be available post NRA to the solicitors he instructed as the litigation friend of last resort. His Counsel was unable to provide a sensible explanation for this omission at the first hearing.

On the second day of the first hearing, the Official Solicitor put in a second statement dated 4 December 2015 setting out responses received overnight from six solicitors he instructed regularly to questions on how they would obtain legal aid if there was not going to be a hearing and if the answer was legal help what limitations there were on their ability to service a significant number of cases. The answers contained differing views but did not support a conclusion that in practice legal help was a practical source of funding for a significant number of cases and thus for the procedure being advanced by the Official Solicitor.

During the second hearing in January 2016, I was told by the Official Solicitor’s Counsel that solicitors the Official Solicitor was instructing regularly were obtaining legal aid funding through legal help and to achieve this were not going on the record. This was a surprising revelation because it did not fully fit with the comments of the six firms set out in the December statement and the Official Solicitor’s note for that hearing, dated 11 January 2016, raised a number of points and doubts on the evidence of the MoJ relating to that source of funding without mentioning that solicitors the Official Solicitor was instructing as P’s litigation friend were relying on it on the basis that they did not go on the record.

Following the second hearing, the Official Solicitor has filed a further statement dated 5 February 2016 setting out the comments of 5 solicitors he regularly instructs on legal aid funding through legal help.

Further, at the outset of the first hearing, and although I had pointed out in paragraph 83 of NRA that the Official Solicitor’s stance simply postponed the problem, he still did not expressly submit or acknowledge that, as and when what he described as his “saturation point” was reached, the orders that he was inviting the COP to make (i.e. joining P as a party) would not provide a speedy, practical and effective process and so would not be fit for purpose.

Rather, he was still effectively advancing a procedural route that he said had not yet reached “saturation point” but which he said would do shortly by reference only to his resources. (And it may be that this focus, and a view that their funding is a matter for the solicitors he instructs and an interpretation of the relevant regulations, explains why he did not analyse that funding or, at an earlier stage, seek information from those solicitors about it.)

The resources of the Official Solicitor are funded by the MoJ and neither the Official Solicitor nor the MoJ indicated that it was likely that, or that it was being considered whether, the Official Solicitor would be provided with more resources.

This silence is a clear indication that neither is the case and so, on his own evidence, if only a small percentage of the necessary and expected applications in cases within the class represented by the test cases now before me are made in the near future, it is inevitable that the Official Solicitor will very shortly reach what he calls his “saturation point” (if he has not done so already if the 90 odd stayed cases are taken into account) and so will not accept further invitations to act as the litigation friend of last resort. As by definition in that class of case there is no family member or friend who could be appointed P’s litigation friend (and as yet there are no accredited legal representatives) this means that if (as the Official Solicitor argued should be done) P is joined as a party he would in most if not all of those cases need a litigation friend of last resort – and as the Official Solicitor would not accept appointment there would not be one.

So, the procedure advanced by the Official Solicitor at best provided a short term solution and a possibility that from time to time in the future his resources may enable him to accept appointment as the litigation friend of last resort.

In oral argument, at the first hearing, Counsel for the Official Solicitor for the first time:

sought to assert that the Official Solicitor was not seeking to advance a procedural solution, and

accepted that if the COP adopted the procedural approach that the Official Solicitor had been arguing for, and which the Court of Appeal had concluded obiter the COP should adopt, to meet the minimum procedural requirements it would be taking a path that would inevitably, and in a very short time, result in a breach of Article 5 because the Official Solicitor had not identified resources that would be made available to support it, and that

if the minimum standard he was advancing was adopted by the COP it would effectively hinder or prevent many Ps from having their care plans considered by the COP for considerable periods of time and so could be damaging to many Ps, and that

as that minimum standard could not be met in practice the COP should take the least bad practically available option. But Counsel did not say what that was by adopting one of the rival arguments of the Secretary of State and the applicants or otherwise.

I suspect that the points made in the last two paragraphs would come as some surprise to the members of the Court of Appeal in Re X.

In the heat of exchanges before me Counsel for the Official Solicitor raised the prospect of me making a declaration of incompatibility. Clearly, if this was a course the Official Solicitor wanted me to pursue it should have been raised much earlier.

The position of the Secretary of State. In NRA the Secretary of State for Justice had taken the lead. In these test cases the Secretary of State for Health took the lead. The further evidence put in by the DoH was approved by the MoJ and vice versa.

It is these two government departments that are primarily concerned with the issues relating to the deprivation of liberty of persons who lack capacity. For example, and in particular:

The MoJ is responsible for providing the resources to draft and prepare the statutory instruments that put into effect recommendations of the ad hoc Rules Committee in respect of the Court of Protection Rules, and those statutory instruments are made by the President of the COP with the approval of the Lord Chancellor.

The MoJ is the funding department for the Legal Aid Agency (the LAA) and the Official Solicitor.

The DoH has responsibilities in respect of giving guidance under the Mental Health Act 1983 and the Care Act 2014.

The position of the Secretary of State also developed over the three phases of the hearing but throughout his general position is reflected by the following paragraphs of a note provided by Counsel at the start of the second hearing on 13 January 2016 in response to questions I had posed by an email sent on 12 January 2016:

P being joined as a party with a suitable family member or friend as a litigation friend;

P being joined as a party with the Official Solicitor as his litigation friend;

a suitable family member or friend being appointed as a rule 3A representative; or

a professional advocate being appointed as a rule 3A representative.

As I have already indicated this needs to be de-coded to relate it to the application of a streamlined (or other) procedure to these test cases and thus to cases that are presented by the applicant authority as being non-controversial and in which there is no available family member or friend on the ground who could be appointed as P’s Rule 3A representative (or his litigation friend if P was made a party).

On the approach of the Secretary of State in NRA and at the two hearings of these cases (namely that P need not be made a party in the test cases) this effectively rules out options (a) and (b) because they involve joining P as a party. So, on that approach of the Secretary of State, these options relate to cases that are (or it is thought may be) controversial, unless they are a fall back in cases when options (c) and (d) are not available.

That leaves options (c) and (d) if there is to be a streamlined or other process that does not involve joining P as a party or a hearing for cases in the class represented by these test cases. Option (c) reflects my conclusion in NRA.

That leaves option (d) in which the “professional advocate” is not an accredited legal representative but is someone with qualifications and/or experience that enables them to take on the role of a Rule 3A representative.

No other option, including those mentioned by me in NRA, was suggested by the Secretary of State at and before the two oral hearings.

So de-coded the Secretary of State’s position, or primary position, is that in the class of cases represented by these test cases, and so when the case is presented a being non-controversial and there is no available family member or friend who can be appointed as P’s Rule 3A representative, the minimum procedural requirements require that:

a professional advocate be appointed as P’s Rule 3A representative, and that

such an advocate would have sufficient independence provided that their previous involvement with P was in an independent capacity.

I accept that point on independence and, as appears from NRA, I agree that, if it was practically available, option (d) would satisfy the minimum procedural requirements.

The Secretary of State submitted that option (d), and so the appointment of professional Rule 3A representative in all DOL welfare order applications presented as being non-controversial where there is no family member or friend who could be so appointed, is a practically available option and so one that is “speedy, practical and effective”. He based this on assertions that the relevant resource of professional Rule 3A representatives would be provided by applicant authorities through contracts with suppliers of people who can provide advocacy services to P and others.

After the hearing on 13 January 2016, I posed some questions by an email sent on 20 January 2016. They included a question asking who the Secretary of State says is responsible on behalf of the state to provide a resource that the COP can utilise to enable it, as a public authority, to comply with the minimum procedural requirements by properly exercising its discretion under Rule 3A and its management powers. In answer, by a note from Counsel dated 5 February 2016 the Secretary of State repeated the four options mentioned above and added:

the COP should consider whether a professional Rule 3A representative is in general likely to be a practically available option in a reasonable time-scale on the assumptions that (as submitted by the Secretary of State) such an appointment would satisfy the minimum procedural requirements of Article 5 and that (an undefined) reasonable time had elapsed during which local authorities could organise their affairs so that a pool of professional Rule 3A representatives is available for appointment by them, and

if there is no suitable family member or friend or professional independent advocate available then the COP could comply with the minimum procedural requirements of Article 5 by joining P as a party and appointing the Official Solicitor as their litigation friend and if the Official Solicitor instructed a solicitor they could obtain funding through legal help.

Point (i) modifies his earlier stance on practical availability and point (ii) is a back-up argument on which the Secretary of State provided no information on what resources the MoJ would provide to the Official Solicitor to avoid him reaching his “saturation point” and so enable him to accept appointment.

The position of the Law Society. I joined it to obtain its comments on the availability of legal aid in practice and to update me on the progress towards the creation of accredited legal representatives. As to the latter, discussion continues but the possibility of appointing one is not something that can at present be sensibly considered as providing a solution.

In submission at the first hearing Counsel for the Secretary of State told me that my conclusions on the availability of legal help were not wholly accepted but the extent and impact of this non-acceptance was not made clear. Following that hearing further evidence on the availability of legal aid, through legal help, was put in on behalf of the MoJ.

To my mind unsurprisingly, the Law Society put in evidence to the effect that there were a number of practical problems relating to this source of funding and the application on the ground of some of the theoretical possibilities identified by the MoJ. I shall return to this.

In commenting on legal aid the Law Society went on to advance submissions that the route to a solution that would satisfy the minimum procedural requirements by providing a practically available option that was “fit for purpose” (see for example NRA at paragraph 267) would be the amendment of the legal aid regulations to provide non-means tested legal aid that would clearly be available in contentious and non-contentious DOL welfare order applications. This is unsurprising because it tallies with points the Law Society has made before and it provides the route to participation in such proceedings by solicitors whether instructed by litigation friends or Rule 3A representatives or others.

I do not dispute that such suggestions (and the creation of accredited legal representatives) could provide, or be a part of, a practical solution but their consideration is outside the scope of these proceedings and so I did not fix another hearing for argument on them. The MoJ would be the government department that would seek to take forward any such amendments.

As I have already mentioned an obvious potential source of professional Rule 3A representatives is persons who are presently available to act as IMCAs, RPRs and Care Act advocates. The initial evidence of the DoH deponent referred to these advocates and some of the legislation and guidance relating to them. But it was effectively only unattributed and unreasoned assertion that did not add to the evidence in NRA that local authority applicants could in theory identify and provide (and so fund) persons who could be appointed by the COP as Rule 3A representatives when there was no available family member or friend.

At the first hearing Counsel did not take up my offer of hearing oral evidence from the DoH or the MoJ deponents, or of providing their reasoning for these assertions on instructions. Rather, he:

made the general and obviously correct point that agreements between local authorities and providers of advocacy services can be changed,

made some general points about budgetary constraints on central and local government and that local authorities can allocate resources to provide Rule 3A representatives, and

by reference to the evidence of the local authorities (which was clearly to the effect that my view in NRA was correct and that in practice they would have considerable difficulty in identifying and providing Rule 3A representatives within a reasonable time, or at all, but that if they were able to do so this would be likely to be at the cost of other services to the vulnerable) submitted that local authorities could relatively easily and cheaply and should provide and so fund the provision of professional Rule 3A representatives.

This approach by the Secretary of State was worrying. It indicated that either the stance had not been thought through since NRA, or that the Secretary of State was seeking to avoid the obvious problems relating to the appointment of professional Rule 3A representatives by simply seeking to pass them on to others without a proper analysis of:

how in practice they would be able to provide the relevant resource of suitable people ready, willing and able take on such appointments by the COP, or

if they did not provide it whether they could be compelled to do so.

However, this approach by the Secretary of State indicates, as I had concluded in NRA and as indicated by the initial evidence from the applicant authorities in these test cases, that the existing contractual arrangements between local authorities and the providers of advocacy services (and their other arrangements for supplying and appointing IMCAs, RPRs and Care Act advocates) do not at present provide an available practical resource for providing persons who are ready, willing and able to accept appointment as professional Rule 3A representatives.

Although they had already addressed these issues, the local authorities understandably wanted an opportunity to comment on this approach of the Secretary of State to making the appointment of professional Rule 3A representatives an available option in practice. Also an adjournment would allow the Secretary of State (a) to provide his evidence based reasoning to support his assertions on the availability in practice of the procedural route he was advancing, and (b) to clarify the extent of his disagreement with my views in NRA on funding through legal help.

In the second round of evidence, the Secretary of State did not take up the opportunity to set out such evidence based reasoning on the availability in practice of a source of professional Rule 3A representatives save to the extent that the deponent commented on evidence put in by the applicant authorities to show that they could in reliance on the flexibility of existing contracts in some cases, or through re-negotiation of existing contracts, or by entering into new contracts with the providers of advocacy services create such a resource. This possibility has never been disputed by the applicant authorities in NRA or in these test cases. It is clearly a theoretical possibility. Rather, what the applicant authorities have been pointing out is that there are a number of significant practical difficulties in turning that theoretical possibility into an available resource in practice.

The second statement for the initial DoH deponent asserting the practical availability of a procedure under which professional Rule 3A representatives were appointed also contained the following (with my emphasis):

The correction in paragraph 6 is directed to what I had made clear was my understanding of the earlier statement. I do not remember an earlier reference to the local authorities having statutory duties to provide Rule 3A representatives for appointment by the COP.

As with the submission made in the note from Counsel for the Secretary of State provided at the hearing of 13 January 2016 that I have quoted earlier, this evidence needs de-coding to relate it to the class of cases represented by these test cases. Unsurprisingly, because that note must have been based in part on this evidence that de-coding reaches the same result. But, to my mind, it steps back from the assertions on the availability of professional Rule 3A representatives made in the first statement and seeks to introduce some “wriggle room”.

The DoH deponent in his two statements, relating to what local authorities could achieve and provide does not even try to address the practical problems identified by the applicant authorities and so why it is said by the Secretary of State that these problems do not, or should not, prevent or significantly hinder local authorities from providing a resource of professional Rule 3A representatives who will be ready, willing and able to accept appointment in all of, or in the majority of, the thousands of expected cases. Indeed, it is expressly acknowledged that the DoH has no specific evidence about that. So, for that reason alone, this evidence / assertion does not show that in practice in most of those thousands of cases the COP could meet the minimum procedural requirements by appointing such Rule 3A representatives.

Further, that evidence does not address the resource problems of the local authorities and so, for example, how in the absence of further funding and assistance they could avoid diverting resources from front line services to the vulnerable if they were to provide such a resource of Rule 3A representatives.

Rather, what this evidence / assertion of the DoH deponent shows is an attempt by the Secretary of State to “pass the parcel” to applicant authorities on the basis of:

unparticularised statutory duties,

possibilities, and

extracts from the evidence of the applicants without addressing the problems they have identified.

Prior to the hearing on 13 January 2016 I had asked the following question by email:

The answer in the note provided by Counsel for the Secretary of State at the beginning of that hearing was as follows (with my emphasis):

To my mind the passages I have emphasised are remarkable omissions from the witness statements.

During and after the hearing in January 2016, the argument that the applicant authorities were under a duty or obligation to identify (and so effectively to provide and fund) suitable persons who are willing to act as Rule 3A representatives was developed by reference to a duty or obligation, of a necessary party to the proceedings, to comply with directions of the COP to that effect.

In exchanges during the January hearing Counsel for the Secretary of State had, by reference to the evidence of the applicants, submitted that if I made an order or issued an invitation to the applicants in the four test cases to identify a Rule 3A representative they would do so in a short and acceptable period of time. My response was that was not how I read their evidence and was met with the submission that the applicants had not said that they would not so comply with such an order or invitation. So, I asked Counsel for the applicants to take instructions.

To my mind completely in line with the evidence of the applicants, the response was that if I concluded that they had a statutory duty to identify and provide persons willing to be appointed by the COP as Rule 3A representatives they would do their best to comply with any direction or invitation I made that they were to do so. But if, as they contended, they were under no such duty, having regard to their overall management of their resources, duties and powers they would not do so.

As the citation from the note provided on 13 January 2016 shows the Secretary of State does not assert that the applicants are under any statutory duty to provide persons ready and willing to be appointed as Rule 3A representatives.

It emerged during the January 2016 hearing that, if the applicants were under such a duty, there was a possibility that the Secretary of State would have to fund their performance of that obligation under the New Burdens Doctrine and that there is a prospect that judicial review proceedings will be issued by other local authorities based on the application of this doctrine to burdens arising from the decision in Cheshire West. I do not know the detail of this potential challenge and so, for example, whether it applies to issues arising under the obligations imposed by Schedules A1 and 1A to the MCA. But if the issues it would raise were of direct relevance in these test cases the Secretary of State and his Counsel would be under a duty to tell me and the applicant authorities more about those issues. They did not and so I proceed on the basis that they have no direct impact on these test cases and the objection by Counsel for the Secretary of State to the introduction of issues relating to the New Burdens Doctrine was well founded. [I was helpfully told by Counsel for the Secretary of State when she provided a list of typing and other obvious errors in my circulated draft judgment that: “A group of local authorities sent a pre-action protocol letter dated 9 November 2015 to the Secretary of State for Health about the funding for DOL generally. The pre-action letter focused on the increased number of DOL situations requiring authorisation in light of Cheshire West and it argued that the Secretary of State was obliged to fund the local authorities’ additional costs (relying on the new burdens doctrine and/or other public law obligations). The letter does not refer to the COP procedures for non-controversial cases and, in particular, it does not referred to rule 3A(2) representatives. No claim has been issued to date.”]

The line of argument that an obligation, or effective obligation, could be imposed by the COP on applicants to provide Rule 3A representatives (but not litigation friends) was developed and pursued in the written exchanges after the hearing on 13 January. It is now that the management powers of the COP (in particular those in Rules 5 (active case management), 25 (wide powers to manage the case and further the overriding objective), 27(1) and 85(3) (wide powers exercisable on the court’s own initiative) enable the COP to direct (rather than invite) the local authority (or other public authority) applicant to identify (in each case) an available or suitable person for appointment as a Rule 3A representative or to take reasonable steps to provide the COP with information about such persons. The Secretary of State asserts that whether or not such a direction would be a lawful exercise of the COP’s powers would depend on the facts of each case (including whether the local authority would be able to comply with such a direction in practice). The submission was repeated that local authorities can, and given a suitable direction / request from the COP, would secure additional or alternative provision of advocacy services so that professional Rule 3A representatives will in practice be available in an (undefined) range of cases adding:

I do not dispute that this is what the Secretary of State has done and it was so pointed out that such flexibility exists in some of the contracts. I also comment that this option has been explored without success in these test cases.

In my view the possibility of renegotiating some contracts or entering into new ones (when the existing contract has no such flexibility) is no more than a possibility that is accepted by the applicants in the test cases but the overall tenor of their evidence is that it is not a possibility they would want to pursue or one which would be likely within a reasonable time to provide persons who were ready, willing and able to be so appointed by the COP as professional Rule 3A representatives. For example:

The evidence served before the December 2015 hearing contained the following:

At the December hearing Gateshead Council prepared a statement that was later confirmed in evidence which contained the following comments:

The evidence at the hearing in January 2016 contained the following:

As appears from those citations a number of reasons are given by the applicants as to why providers are not keen or willing to provide a source of Rule 3A representatives. Some of those could be addressed by the COP and others by way of clarification but even with such clarification convincing common themes of the evidence are that:

Providers are overloaded and a significant reason for this is the provision of advocates under the DOLS as a result of the decision in Cheshire West and more generally.

The pool from which people could be added to act as rule 3A representatives is limited and they would need training.

Rule 3A representatives may need legal help and this could only be funded by legal aid or P.

Any negotiations leading to any such provision would not be straightforward, would take time and would involve the provision of extra funding that would be at the cost of frontline services (if no other funding was provided).

What seems to be being suggested by the Secretary of State is that in each and every case the COP should investigate to see whether, as a result of renegotiation or possible renegotiation of the contracts (and so not under their existing terms) between the applicant in that case and its supplier(s) of advocacy services, some existing independent advocates may be made available for and be ready, willing and able to accept appointment in that case (and no doubt others brought by that authority). Any such renegotiation would take time and the Secretary of State has not identified how long the COP should allow for it and how, if at all, the COP should monitor it or, would absent further resources being provided to it, be in a position to do this without jeopardising the performance of its other work.

On any view this is a piecemeal and inefficient approach unless and until the approach of applicant authorities is co-ordinated.

Importantly, this possibility has been investigated in these test cases with the result that the applicants, including those who have identified flexibility in their existing contracts, have expressly confirmed that unless they have a duty to do so they will not embark on any such re-negotiation. The Secretary of State has not expressly challenged that this is their position or the validity or lawfulness of their reasoning. Nor has the Secretary of State asserted that, and there is no evidence that indicates that other applicant authorities would be likely to adopt a different position.

In addition to the absence of any convincing evidence to support the Secretary of State’s assertion that professional Rule 3A representatives can be, or will in a reasonable time be, made available in practice for appointment by the COP in a significant number of the expected cases, a major flaw in the Secretary of State’s position is that:

it is expressly accepted that there is no statutory duty on applicant authorities to provide the relevant resource for the COP, and so

his position is based on the (possible) exercise by local authorities of a number of powers governed by administrative law and so a process governed by a legal regime outside the jurisdiction of the COP and under which the local authorities (like government departments) can take into account a range of factors.

It is well established (see ACCG and Another v MN and Another [2013] EWHC 3895 (CoP) and in the Court of Appeal [2015] EWCA Civ 411 in particular at paragraph 46 of the judgment of Munby LJ) that when making a substantive order the COP can only choose between available options and cannot properly order a public authority to provide a further option applying a “best interests” test. Any such order would have to be based on administrative law grounds.

The same must apply to procedural orders where the test is set by the overriding objective having regard to the principles in the MCA and so not simply the best interests test. An example by analogy of the inability of a court to use a case management power to compel a public authority to do something that involved it making decisions governed by administrative law that it does not want to make is the decision of the Court of Appeal, in Secretary of State for Work and Pensions v R (on the application of MM and DM) [2013] EWCA Civ 1565 at paragraphs 78 to 84 on the directions given by the Upper Tribunal to the Secretary of State.

More generally any exercise by the COP of its wide ranging case management powers must be based on the exercise of a judicial discretion and so the COP has to take into account whether it can identify a basis for its direction that, if necessary, can be relied on to enforce it and so in these test cases make the applicants do something that they have told me, and I accept, they will not do unless they are under a statutory duty to do it. I have not identified any such duty and indeed no such duty or other basis for making an enforceable direction is asserted by the Secretary State.

I acknowledge that the applicants would have the power to comply with such a direction or invitation and in some circumstances the COP could base an order or request on the existence of such a power. But, in these cases, we have not moved forward from NRA where I made it clear that I was not prepared to make a direction or request unless I was satisfied that there was a realistic prospect it would be successfully complied with. Indeed, the position is now even clearer because the applicants have expressly stated their position and there is no sensible reason to think that other applicants would take a different view.

So, in my view, the COP could not properly and so should not give a direction to the applicant authorities to identify or to provide information about the availability of a Rule 3A representative in the four test cases or in future cases in the same class.

The points made in the note from Counsel dated 5 February and so after the hearings referred to in paragraph 67 hereof. The first seems to recognise that, as the evidence shows to be the case, there is no existing pool of persons from whom the COP could select and appoint a professional Rule 3A representative, and that on the approach taken by the Secretary of State there are significant problems in the way of making one available in a timescale that would enable the COP to meet the minimum procedural requirements by making such appointments.

The second point re-introduces the procedural course originally advanced by the Official Solicitor but which he has accepted he does not have the resources to put into effect by accepting appointment as the litigation friend of last resort. In making this suggestion it was acknowledged that the MoJ was responsible for funding the Official Solicitor and earlier it had been acknowledged that the Secretary of State was not asserting that the applicant authorities should identify litigation friends.

However, in advancing this alternative for cases in the class of those represented by these test cases the Secretary of State did not address whether and if so what resources would be provided to the Official Solicitor (or were in contemplation) to enable him to accept appointment. If I had realised at the hearings that he was making this back up proposal I would have raised this point. It is now too late to do so and thereby start another round of written communications.

Sadly, the history of this case does not found what might be thought to be a natural inference that when a government department acknowledges that it is the provider of relevant resources for a course of action it is suggesting, a court can infer and assume that those resources would be provided. Rather, the inference from the continuing silence in respect of the provision of resources to the Official Solicitor carries the inference that there are no plans to provide them. I am sure that the Official Solicitor would have informed the court if he was aware of any such plans or prospect.

If I am wrong about this the provision of this resource is one that the Secretary of State can provide under the order I propose.

The second stage of this back up proposal is based on the funding of a solicitor appointed by a litigation friend or Rule 3A representative through the provision of legal help (or self-funding if P does not satisfy the means test). It therefore requires the appointment of such a litigation friend or Rule 3A representative and so in cases where there is no appropriate family member or friend this procedure would in practice not be an available because there would be no person who the COP could so appoint who was willing to accept the appointment (which is a precondition of appointment) and so who could instruct a solicitor on behalf of P.

However, I will deal with the updating on legal aid issues in case the Official Solicitor is provided with resources to act as the litigation friend of last resort in the relevant class of cases and because they have some relevance when a family member or friend is appointed as a Rule 3A representative or litigation friend and wants to instruct a solicitor.

Updating evidence on legal aid. This has confirmed that full and investigative legal aid is not properly available for a streamlined process or any process that does not properly need a hearing.

My view remains that the court cannot set up a process that includes a hearing simply to enable Ps to qualify for full or investigative legal aid. If a hearing is not needed it is not needed. Also, any hearing would add significantly to the costs of the local authorities.

So the only route to full or investigative legal aid is a conclusion that the minimum procedural requirements are that P must be a party (so there must be a litigation friend) and there must be a hearing. The Court of Appeal in Re X do not conclude, and no one has submitted, that the minimum procedural requirements require there to be a hearing in every case.

To my mind, the remarkable position has been reached in respect of funding through legal help that:

if as I would expect (and the Law Society has without any survey of the practice of its members stated would be normal) a solicitor instructed by a litigation friend went on the record he could not apply for funding under the legal help scheme, but

the solicitor can do so if he holds off going on the record for the sole purpose of qualifying for that funding.

That approach also carries with it the risks identified by the Law Society relating to “unbundling of legal services” which relates to the professional negligence risk of advising without proper instructions and so a disincentive to solicitors to take this approach.

The position advanced by the MoJ, with the concurrence of the LAA, is that if a solicitor accepts instructions and does not go on the record legal help funding can cover all of the work that has in the past normally been done by solicitors instructed by the Official Solicitor under the Re X streamlined procedure and so to fund (a) a visit to see P, (b) the preparation of statements (including a position statement) to be used in the proceedings, and (c) the giving of advice to the Official Solicitor as to the stance to be taken in the proceedings (e.g. to seek changes in the care plan and to make a submission to the court that the care plan is in P’s best interests and the least restrictive option – which is what the litigation friend has to do because the court must be satisfied as to this).

In my view, this position does not sit at all easily with the wording of the regulations and the underlying purpose of legal help. It seems to me that it must be founded on a view on the meanings of “conducting proceedings” and “preparing to provide advocacy in proceedings” and “advocacy in proceedings” that is informed by the need for there to be a hearing if full or investigative legal aid is to be available and so that when there is not a hearing steps, such as those described in the last paragraph, that would normally fall within those descriptions fall outside them and so enable a solicitor who holds off going on the record to fund them through legal help if the means and merits tests are satisfied.

The note from Counsel for the Secretary of State handed in on 13 January 2016 includes an important caveat. It is that P may not satisfy the merits test if an experienced IMCA is appointed as the Rule 3A representative because legal help may add little value to the expertise of the IMCA (in other words, there may not be sufficient benefit to P, having regard to all the circumstances of the case, including the circumstances of P, to justify the cost of provision of legal help) and it is difficult to see why this caveat would not also apply to the Official Solicitor. As I have mentioned, the availability of legal aid is a point that has been raised by a provider of advocacy services and this caveat is directly applicable to that concern.

Subject to that caveat, and notwithstanding my doubts concerning the validity of the LAA’s interpretation and proposed application of the regulations, I accept that the LAA will apply the regulations relating to legal help in the way that has been asserted by them and the MoJ and so will not take the point that any such solicitor would be conducting court proceedings or preparing to provide advocacy in proceedings etc. This accords with the present experience of solicitors instructed by the Official Solicitor set out in the most recent statement made by the Official Solicitor.

However, and although the information from those solicitors indicates that they have been able to fund their work through legal help, it seems to me that taken as a whole their comments show that the level of payment under legal help is such that its use in the back up procedure now suggested by the Secretary of State (rather than the Official Solicitor) is not a viable option particularly if a large number of cases are brought and there are a large number of reviews. To my mind, the following quotes from the information provided by those solicitors describe the likely position on the ground and support that conclusion:

The Law Society also points out, and I accept, that the experience of its members of the process by which the LAA may authorise an emergency increase in matter starts is not as straightforward in practice as the statement put in on behalf of the MoJ might suggest. The Law Society gives an example of a national firm that undertakes COP work whose application for an exceptional increase was refused on the basis that other providers in their region had not exhausted all their relevant matter starts. This criterion ignores the fact that some providers with community care matter starts will not undertake mental capacity work. Similarly, some providers with mental health contracts would also not use matter starts for the mental capacity work. And, the Law Society also points out that the vast majority of the 46,824 matter starts allocated to providers that is referred to in the MoJ statement are likely to be for mental health tribunal cases. Additionally, providers have been allocated matter starts under their current legal aid contract in accordance with the assessment of need they made for contracts awarded in 2014 but there is no mechanism by which the number of allocated matter starts may be increased, other than exceptionally, during the current contract period which the Law Society understands may run until 2018.

It seems that these points on the economic viability of acting for a litigation friend would also apply to solicitors instructed by a professional Rule 3A representative on behalf of P.

So, in my view, and ignoring my caveat relating to the application of the merits test, in practice the approach taken by the LAA (and the MoJ) to the interpretation and application of the regulations relating to legal help is only likely to benefit family and friends who are appointed as a Rule 3A representative to get advice on what this role involves and what they should take into account and do.

I made some suggestions in NRA, namely seeking s. 49 reports and issuing witness summonses. I add the appointment of visitors.

These form a part of the procedure suggested by the applicants but none of the parties suggested them on their own, or with expansion, as effective solutions. I mentioned them to trigger a constructive consideration of alternatives that has not taken place.

I accept that absent further resources being provided to significantly expand their utility these possibilities cannot provide a practically available alternative to the appointment of a Rule 3A representative to meet the minimum procedural requirements and I have not thought of any others that could do so.

A short term solution in a limited number of cases may be to make P a party and appoint the Official solicitor as his litigation friend. I return to this in discussing the order I should make in these test cases.

My conclusion in NRA still applies (see paragraph 118) that, absent the provision of further resources, in practice all of these options judged by reference to common law fairness or Article 5 or Article 14 are not fit for purpose because they do not provide a resource which is available and would in practice enable the COP to meet the minimum procedural safeguards for cases in the class represented by the test cases before me.

At best they provide a short term solution up to the Official Solicitor’s “saturation point”.

As appears from NRA, I accept that fairness is a two way street and that welfare orders that authorise a deprivation of liberty provide protection to the relevant applicant authority (see paragraph 7). But it must at least be open to question whether an order made on the basis of a procedure that does not satisfy the minimum procedural safeguards, and so is unlawful, provides such protection even if the care package on which it is based is shown on any challenge to be the least restrictive available option to best promote the welfare of P. If that was the case, it might well reduce the likelihood of any challenge and the amount of any damages but, in my view, this pragmatic help to applicant authorities does not found the adoption of a procedure by the COP that is unlawful on the basis that it does not provide P with the minimum procedural safeguards; and it was not argued that it should.

Also as appears from NRA (at paragraphs 31 to 52 - where I discuss what I called the Procedural Balance) I am of the view:

that the procedure suggested by the applicant authorities is one that is procedurally and substantively fair for other non–contentious applications to the COP in which the determinative test is the “best interests” test, and

that if greater safeguards were introduced to safeguard P in such applications this would be unduly onerous both emotionally and financially for Ps and their families.

Further I repeat my recognition of the points that:

in the vast majority of the cases in the class represented by the test cases (and applications under s. 21A) whether or not P’s care package creates an objectively assessed deprivation liberty is not the determinative question and effectively is only relevant to the issue whether an authorisation is needed, or s. 21A applies, and

the determinative question is, applying the best interests test, whether the care package is the least restrictive available option to best promote P’s best interests.

So the question becomes whether, on a fact and circumstance sensitive approach to determining what is a fair procedure and so one that provides appropriate procedural safeguards, cases within the class represented by the test cases need to be dealt with differently to other non-contentious cases that are determined by the same, or effectively the same, substantive test.

On the basis that I am right and the procedure of the COP in other non-controversial cases is fair and so provides appropriate safeguards, the key issue on this question is whether the nature and effect of the situation on the ground that needs to be authorised requires a different approach to meet the essence of the minimum procedural safeguards.

I have concluded that it is not possible to escape:

from the nature and effect of the classification of that situation by Cheshire West as an objectively assessed deprivation of liberty, and so from

the significant consequences that this has at common law and by engaging Article 5 (see paragraph 6 above).

In reaching that conclusion I have taken into account the points that the relevant situation on the ground is asserted to be non-contentious and to be justified in the best interests of P, and so it can be said that it is different to other deprivations of liberty (see NRA paragraph 193). But:

the Supreme Court has held that these cases are ones that involve the deprivation of liberty of persons who lack capacity and are vulnerable and so cases in which, at common law and under Article 5, the situation has a distinct and particularly serious result for persons who do not have the capacity to agree to it,

in my view, the reasoning of the majority in Cheshire West means that it is not possible to treat cases in the class represented by the test cases as anything but cases involving a deprivation of liberty when determining whether sufficient procedural protection has been provided by a court at common law or under Article 5 against arbitrary decision making and so arbitrary detention, and to enable the person deprived of liberty to challenge that result,

the lack of capacity and vulnerability of the person deprived of his liberty is plainly a factor that points towards him having someone “in his corner” to carry out an independent review of whether the view of the applicant authority is justified and represents the least restrictive available option even if there is no prospect that that person’s best interests cannot be served without, on the Cheshire West conclusion, depriving him of his liberty.

Whilst I acknowledge that the COP has an investigatory jurisdiction and the applicants have a duty of full and frank disclosure I have concluded that the points set out in the last two paragraphs mean that without some assistance from someone on the ground who considers the care package through P’s eyes and so provides the independent evidence to the COP that a family member or friend can provide (see NRA paragraphs 230 to 240) the procedure will not provide an independent check that meets the minimum procedural safeguards required by Article 5 and the common law.

Although I have parted company with the obiter conclusion of the Court of Appeal in Re X that the only way to meet the minimum procedural requirements is to make P a party, in my view the conclusion in the last paragraph accords with, or with much of, the underlying reasoning of the Court of Appeal in Re X on what is required to meet the essence and so the purpose of the minimum procedural safeguards. It also accords with (a) the stance of the Secretary of State on what is required and so that the Re X streamlined procedure and that suggested by the applicants under which P has no independent representation or check on the ground is not enough, and (b) my reasoning in NRA when a family member or friend can be appointed as a Rule 3A representative.

History and experience shows that considerable advantages can flow from someone independent from the applicant authority looking at the position on the ground through P’s eyes and so “fighting his corner”. However careful and however experienced the judge a paper only check based on the evidence provided by and the views of the applicant cannot provide as good a safeguard as one where information from P’s perspective is provided by someone on the ground who is independent.

As the Court of Appeal in Re X points out the DOLS provide that protection through RPRs. And an equivalent approach is taken under the Care Act.

I do not suggest that even with such independent help the COP will not miss points, or get things wrong, but in my view the risk of such errors being made will increase significantly if the system or procedure does not include such independent help. Further, if and when such errors occur without it, it is likely if not inevitable that they would properly be attributed (at least in part) to the failure of the system or procedure to provide the minimum procedural safeguards for a person who is being deprived of their liberty.

The point that in cases of doubt the COP can, and in a number of cases would, seek further information or take other steps under Rule 3A, or order a s. 49 report, instruct a visitor or issue a witness summons, means that in some cases it would avoid the system or procedural defect arising from the lack of an independent check. But it does not remove it.

Nor does the point that from April 2016 there is the added potential for cross fertilisation between Care Act assessments and a streamlined procedure (see in particular s. 67 of the Care Act). This links with the point that a P may have an IMCA or a RPR (see s. 39 of the MCA). An example of this cross fertilisation occurred in the case of JM in which JM’s Care Act advocate has completed Annex C to the application to the COP.

But, and it is a crucial but, Annex C and so what a Care Act advocate was prepared to do in JM’s case and so which such an advocate or an IMCA / RPR may be prepared to do as such under the present arrangements (or as the role of a Care Act advocate develops), is not aimed at the task of a Rule 3A representative. Rather, as the heading of Annex C shows, it records a consultation with P and so under the Re X procedure, it is directed to ascertaining the views of P and not to an independent check of the care package, negotiation (if necessary) with the applicant authority as to what it should contain and the taking of a position for or against it in the COP.

On one view the role of a Care Act advocate may cover such a check and negotiation about, and so challenge to, terms of the care package, but it is common ground that their present role does not extend to taking on a responsibility to the COP, or taking a position before the COP, or instituting reviews by the COP. On the same theme some IMCAs and RPRs, particularly under the DOLS, and so in connection with proceedings under s. 21A of the MCA, have taken on the role of litigation friend. But again it is common ground that their present role does not extend to acting as a Rule 3A representative.

So, in my view the cross fertilisation point:

confirms the accepted possibility that persons who have acted as and/or are or may become available to act as IMCAs, RPRs and Care Act advocates for Ps are a resource from which Rule 3A representatives could be appointed,

indicates that constructive discussion between central and local government and the providers of advocacy services coupled with the provision of some extra funding may provide a route to overcoming the present reluctance of the providers of advocacy services to provide and of the persons they recruit to act as Rule 3A representatives, but

does not provide a procedure or resource that is presently available in practice to the COP to meet the minimum procedural requirements by exercising its power under Rule 3A (or its general management powers) to appoint someone to carry out an independent check and report back to the COP.

I accept that such constructive discussions coupled with the provision of extra funding would have a good prospect of expanding the resource of advocacy services provided by providers to cover Rule 3A representatives or to achieve the result that those who act or are qualified to act as Care Act advocates, IMCAs and RPRs are ready, willing and able to directly or indirectly play a part in COP proceedings that will satisfy the minimum procedural requirements as a Rule 3A representative, or possibly as the author of a report and so a witness (and so by analogy a visitor or a CAFCASS reporter). Issues in any such negotiations would be (a) the independence of such advocates (see for example paragraphs 64 and 65 above) and (b) whether they could carry out the day to day supervisory roles that a member of the family or friend can carry out and which could trigger an application for a review. As I said in NRA the latter is outside the role of a litigation friend and it may be that it could be dispensed with and covered by periodic reviews.

The possibility of this result being achieved is effectively common ground. The divergence between the applicants and the Secretary of State relates to whether it could be achieved without further resources, who should provide such resources and possibly on timescales if and when those resources are provided. So the divergence comes back to the central points raised in NRA on the practical availability now (or in the near future) of a process that meets the minimum procedural requirements and has created what I have referred to earlier as a “resources led Catch 22”.

This reasoning and conclusion means that I do not have to go on to consider whether the COP has the resources to implement the procedure advanced by the applicants in a way that is speedy, practical and effective. However I comment that any such consideration would engage issues concerning the appointment, training and availability of a sufficient number of judges but I am of the view that there should be a real prospect that such issues could be resolved.

Conclusion. The procedure proposed by the applicants does not meet the minimum procedural safeguards required by Article 5 and the common law and so would be unlawful.

It is not uncommon in a welfare case for the COP to take the least bad available option. This flows from the point that it has to choose between available options. But the choice is of the least bad available lawful option and so in my view this approach does not provide a basis for choosing an unlawful option.

In the short term, it may be that as in NRA there is an available short term option of making P a party and appointing the Official Solicitor to act as his litigation friend in these test cases and others of the same type. That possibility is catered for by my proposed order because in each case the MoJ can ask the Official Solicitor whether he can do this on the level of resource it has provided or will provide to him and he can check whether a solicitor would act for him in that case.

Also, the proposed order enables an applicant to avoid the stay by identifying a Rule 3A representative or to apply to lift the stay if and when one is found or some other way of meeting the minimum procedural requirements is found.

In one sense the stay accords with the general case by case approach suggested by the Secretary of State because in these cases the COP has investigated the possible alternatives and not found one (other than the short term back-up possibility of appointing the Official Solicitor as P’s litigation friend until he reaches his “saturation point”) and in other cases the joinder of the MoJ and the stay acts as a trigger to the investigation suggested by the Secretary of State save that it also engages central government.

If it was to have any real prospect of success this is the investigation that the COP would have to trigger by directions, adjournments for answers and possibly witness summonses on a case by case basis. Not only would such a course jeopardise the proper performance by the COP of other aspects of its work, it would be a waste of time and effort if the public authorities faced directly and indirectly with the problems arising in respect of DOL welfare order applications did not address those problems constructively and timeously.

I confess that I have reached my conclusion with reluctance and sadness because it seems to me that:

In many cases the Re X procedure and thus the approach urged by the applicants would provide the right answer in a proportionate way having regard to what are effectively best interests and not liberty of the subject issues.

If lawful, such a procedure is one that the COP should have a realistic prospect of being able to perform in a speedy practical and effective way and, in many cases, it would correctly identify and authorise a care package that is the best and least restrictive one available to promote P’s best interests and thereby relieve many Ps and their families of uncertainty and concern, and many public authorities of the problems flowing from the unlawful provision of such a care package because, applying Cheshire West, it deprives P of his liberty.

The purpose and instinct of the COP is to try and provide the results referred to in sub-paragraph (ii) and it seems to me that this underlay the President’s decision in Re X and I know it underlay the introduction of Rule 3A.

The underlying approach of the Secretary of State has been to accept and advance that purpose of Rule 3A without engaging constructively in the provision of resources that would enable the COP to do so by appointing professional Rule 3A representatives. This approach together with the answer to one of my final questions that I could not resist, namely:

They may continue to do this but in doing so they will be refusing the invitation of the COP, for which the MoJ accepts it has responsibilities, to assist it in finding a way in which it can meet the minimum procedural requirements and so act lawfully in the class of cases represented by the test cases.

Naturally, I acknowledge that the Secretary of State has no direct knowledge of each case and would probably not be a necessary party if constructive work was being done to provide available resources. But they are not and the Secretary of State can address the general points absent any detailed knowledge of each case and if he needs such knowledge he can ask for it.

I have issued only an invitation to the Secretary of State because, for the same reasons that I have concluded that I cannot direct or order the applicants to provide a Rule 3A representative or other resources to meet the minimum procedural requirements, I accept that I cannot order the Secretary of State to do so.

My invitation will enable the Secretary of State to demonstrate to the COP that his submission in these cases is right, or can be made right, by him identifying in each case which of the four options he has advanced is an available, practical and effective procedure in that case. I express the hope that he will be able to do so. When a history showing the availability of such options has been established it may well be that the COP (and the other parties to such cases) will no longer need the assistance of the Secretary of State to identify the options that are available to them. But at present they do.