There was no attended hearing and so this judgment was delivered in private after consideration on the papers. I give leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so may warrant punishment as a contempt of court.
CASE NOs:
12639619
11777203
13017491
11923185
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
MR JUSTICE CHARLES
Re: KT, DR, KH and DC
Neil Allen (instructed by Mr Earl, Head of Legal Services, Suffolk Legal and Mrs Baljit, solicitor for Wolverhampton City Council) for the Applicant Authorities
Jason Coppel QC and Holly Stout (instructed by GLD) for the Secretary of State
Judgment
Charles J :
Introduction
These are four test cases that were stayed in accordance with my decision in Re JM [2016] EWCOP 15. In three of the cases the applicant local authority is Suffolk County Council and in the other case it is Wolverhampton City Council.
In JM, I concluded that applications made for welfare orders to authorise a deprivation of their liberty on the basis that they are not contentious should be stayed when no family member or friend is available for appointment as P’s Rule 3A representative. I also concluded that the Crown should be joined as a Respondent. This was because I concluded that central government, and in particular the Ministry of Justice (the MoJ), is primarily responsible for providing the resources needed to enable the Court of Protection (the COP) to adopt an Article 5 compliant and fair procedure. Also, that joinder enabled the MoJ (and the Department of Health - the DoH) to “put their money where their mouth was” by identifying professionals ready willing and able to act as Rule 3A representatives in the stayed cases and thereby establish the solution they had maintained local authority (and other) applicants could provide, but I had concluded was not practically available.
The number of stayed cases has grown steadily. There are now over 300 such cases in which the MoJ and DoH (alone or together with the relevant applicant local authority or other public body) have not been able to identify a professional who the COP could appoint to act as P’s Rule 3A representative.
The JM judgment is dated 10 March 2016. Over a year later, in letters sent in late March and early April 2017 to applicants in stayed cases the Government Legal Department (the GLD) indicated that Ministers had agreed to provide funding to HMCTS to enable greater use of visitors by the COP.
Such letters prompted the applications in these four test cases to lift the stays imposed on the basis that a visitor was to report.
The letters were in standard terms and maintained, as in JM, that the most appropriate means of moving such cases forward would be for “the local authority in question to identify a professional advocate for appointment under rule 3A”. Since 1 December 2017, the appointment would be under Rule 1.2 (2)(c)but I shall refer to the old rule and so to Rule 3A representatives.
The letters also stated that:
We are aware that a small number of local authorities have taken this route. We now invite the authority in each stayed matter to consider its position in this regard. Where a professional advocate is not available we invite the authority to liaise with the Court to take forward the process of commissioning a Court of Protection General Visitor to complete a report under s 49 of the Mental Capacity Act.
However, the letters were effectively devoid of (a) any detail of what the extra funding to support the appointment of visitors would be and so in how many applications (and reviews) this would be a practical option for the court, and (b) any evidence concerning, or any explanation of how, the appointment of a professional advocate identified by an applicant local authority had become (or always had been) a practically available option in a significant number of cases. Accordingly, I made the following directions on 26 May 2016:
The Crown (acting through either or both of the Secretary of State for Justice and the Secretary of State for Health or their Departments) is to serve and file evidence setting out the detail of the proposals relating to the provision of more resources to enable visitors to be directed to take part in proceedings within the class of cases described in Re JM and the underlying rationale of those proposals and, without prejudice to the generality of that direction, that evidence is to address the position of the Crown on the following:
The directions that should be given to a visitor on the matters to be covered by their report.
The information that should be provided to a visitor.
Whether the visitor should be appointed to act as P’s Rule 3A representative.
Whether the proposed resource is open ended in the sense that it will be available for (i) all existing stayed applications and their review, and (ii) all future applications in the class of cases described in Re JM and their review.
If it is not open ended what are its limitations in terms of the numbers of applications and reviews per year and/or by reference to the availability of other options (in particular of a professional advocate to act as a Rule 3A representative).
The evidential base for the view expressed that it remains the position of the Secretary of State that “the most appropriate means of moving matters forward would be for the local authority in question to identify a professional advocate for appointment under rule 3A.” In particular setting out:
any new evidence or information relied on that was not put before the court in Re JM, where the court concluded that this position of the Secretary of Statedid not provide a practical solution and so how the opportunity given to the Crown by the directions made pursuant to Re JM has enabled the Secretary of State to maintain / advance this position as a practically available option,
how each local authority should go about considering its position in respect of the identification of a professional advocate for appointment under Rule 3A, identifying the small number of local authorities who the Secretary of State has asserted have been able to take this route and how they have been able to do so,
how a significant number of local authorities will be able to identify professional advocates who could be so appointed and how this fits with the penultimate paragraph of the letter dated 18 April 2017 from the Government Legal Department to my clerk,
the approach that the Court should take in cases in which (as here) the relevant local authority asserts that a professional advocate is not available for appointment under Rule 3A to prove that this is the case, who should be permitted to comment on that evidence and the impact that an inappropriately supported assertion of the absence of an available professional advocate should have on the Court giving directions to a visitor, and
the continued joinder of the Crown to applications when the Applicant’s position is that there is not a person available for appointment as a Rule 3A representative for P.
The evidence referred to in paragraph 1 is to be served and filed on or before 21 June 2017.
Also on and before 21 June 2017 the Crown is to serve and file a skeleton argument setting out:
why the directions to a visitor pursuant to its proposals will satisfy the relevant procedural requirements in each of these cases (or in them after further satisfactory evidence has been filed on the unavailability of a professional advocate to act as a Rule 3A representative) and more generally in the class of cases described in Re JM, and
whether it asserts that the Court should direct an oral hearing of these applications or deal with them on paper.
On or before 5 July 2017 each of the Applicants is to serve and file evidence:
on the availability of a professional advocate to act as a Rule 3A representative in these cases, and
giving an estimate of the number of applications seeking welfare orders to authorise a deprivation of liberty they are likely to make in the next 12 months on the basis that they are not contentious and no-one is available for appointment as a Rule 3A representative if the applications can be dealt with by the appointment of a visitor.
Also on or before 5 July 2017 each of the Applicants is serve and file a skeleton argument addressing the points set out in paragraph 3 in respect of these cases and paragraph 1 (a), (b) and (c) above.
In the evidence and other documents served and filed pursuant to these directions KT, DR, KH and DC are to be referred to by initials and those documents should not contain any material or information that identifies or is likely to identify that they and members of their respective families are respectively the subject (and so a P referred to in s. 4A of the Mental Capacity Act 2005) or members of the family of a subject of the Applications.
The letter dated 18 April 2017 referred to in those directions followed correspondence between me and the GLD in which I raised points reflected in the directions set out above and stated:
We recognise that appointment of an Independent Mental Capacity Advocate (IMCA) will not be a practical solution in many cases. Following the judgment in Re JM, the local authorities in the various stayed cases were contacted and asked if they could identify an IMCA willing to act as a Rule 3A representative. The local authorities have been seeking to do this in any event, further to the judgment in Re JM, and 13 were able to do so. This number is subject to change as we continue to receive updates on the various local authorities when there is any change in circumstances in any of the stayed cases. For this reason, we would wish the court to continue to consider this option under Rule 3A.
This appeared to recognise that, in line with my conclusion in JM, it would only be in a few cases that the option of appointing a professional advocate identified by the local authority would be a practically available option and so to conflict with the stance being taken in the standard term letters sent out by the GLD in the stayed cases.
The GLD sought an extension of time to comply with those directions. Worryingly, this indicates that the reasons for the stance taken in the standard letters had not been properly identified and evidenced.
After those directions were complied with the GLD sought a direction that a response could be given to the evidence and argument of the two applicant authorities. This was given and further submissions dated 13 October 2017 were filed on behalf of the Secretaries of State for Justice and Health. As in JM my references to the Secretary of State covers both of them.
The last paragraph of those further submissions contains a significant volte face by the Secretary of State because it departs from the previous position of both sides, accepted in JM, that local authority and other applicants do not owe a statutory duty to provide representation for P in the COP.
The position in JM is recorded and commented on in the following extract from my judgment:
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:
What are the existing statutory duties of local authorities [the deponent] is referring to? And more generally (a) why it is said that the duty / obligation to provide the resources to meet the minimum procedural requirements of Article 5 in proceedings in the COP that the decision Cheshire West has made necessary falls on local authorities and not central government, and (b) is it asserted that if P has to be made a party the duty to provide litigation friends also falls on local authorities
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):
22. [The deponent] referred to the local authorities existing statutory duties in paragraph 4 of his second witness statement. This was a reference to local authorities’ statutory duties in respect of DoLs generally under the Mental Capacity Act 2005. For the avoidance of doubt, it is not suggested that there is any specific statutory obligation that requires a local authority to arrange or fund the appointment of rule 3A representatives.
23. The Department’s position is that rule 3A representation is one of the potential methods for the Court to consider, so as to ensure that the process meets the Article 5 minimum requirements in a particular case, but the Department does not seek to impose any new obligation on local authorities or any other bodies.
24. The Department does not say that the obligation to provide the resources to meet the minimal procedural requirements necessarily falls on local authorities. But that local authorities are public authorities who have responsibility for compliance with Article 5, in the same way as other public authorities have such responsibility. Which public authority is required to take steps to comply with Article 5 will depend on the facts of each case. For example, a local authority would not be obliged to provide resources if the Article 5 minimum procedural requirements were met by the appointment of a family member or friend as a rule 3A representative.
25. For the avoidance of doubt, it is not asserted that the local authorities responsible for funding the appointment of any litigation friend.
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:
The Secretaries of State have highlighted that some local authority contracts are sufficiently flexible to cover appointment of advocates as rule 3A representatives and that other local authorities could renegotiate their contracts, or tender for new contracts, so that they had the ability to identify and provide rule 3A representatives. Therefore, appointing an existing independent advocate as a Rule 3A representative is an option that could be explored by the Court with each local authority on a case-by-case basis. It is not suggested that a Rule 3A representative should or could be mandatory in every case.
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.
The volte face is that for the first time, the Secretary of State asserts that local authority applicants owe a duty under section 6 of the Human Rights Act 1998 “to facilitate the speedy resolution of the application by (for example) ensuring that a professional advocate is appointed to represent P’s interests so far as necessary”. In the very last sentence it is then asserted that this duty: “falls into the same category as the DOLS duties which were considered in Liverpool City Council”. This is a radical departure from the position taken by the Secretary of State in JM in connection with the New Burdens Doctrine (see paragraph 93 of JM cited above).
I can see why the Secretary of State needed to introduce such an argument to try and counter the compelling evidence and submissions of the applicant authorities that the earlier reliance of the Secretary of State on funding provided by central government to local authorities for adult social care and the decision in R (Liverpool City Council and ors) v Secretary of State for Health [2017] EWHC 986 (Admin) was misplaced because:
that decision was founded on statutory functions and duties introduced and imposed by the DoLS regime that do not exist in these cases which, by definition, are outside that regime, and
on a proper analysis, the conclusions on the availability of resources in the Liverpool City Council case to local authorities in cases involving a DoL supported the applicant authorities in the stayed cases rather than the Secretary of State.
Part of this support comes from evidence served in that case and exhibited in these cases by the Secretary of State from the Deputy Director for Social Care Oversight in the Department of Health that stated:
If any local authority is in the position whereby it believes that it has allocated insufficient funds to enable it to meet its statutory obligations, whether in respect of DoLS or otherwise, the Government would expect it to make appropriate re-allocations of funding from its budgets for performance of its discretionary functions. The Government expects local authorities to prioritise spending discharging their statutory duties over discretionary functions
Nonetheless, and having regard to the position taken in JM (cited in paragraph 13 above), to my mind it is astonishing that the Secretary of State, through the GLD and their counsel, sought to introduce this new argument in the last paragraph of the written material provided for a decision on the papers without:
acknowledging that it was new or that it might require oral argument,
addressing why the asserted HRA duty can be categorised with the functions and duties given to and imposed on local authorities by the DoLS,
addressing what the impact or relevance of the HRA duty now asserted would be or ought to be on:
the availability of resources to applicant local authorities to provide professional Rule 3A representatives having regard to the decision in the Liverpool City Council case, the application of the New Burdens Doctrine or otherwise, and so
the availability in practice of persons who could be so appointed by the COP,
addressing how the existence of the HRA duty now asserted was said to lead to a different result to the earlier arguments based on the COP Rules and directions made under them, including the ability of the COP to make an enforceable direction against an applicant authority to identify a person who could in practice be appointed as a Rule 3A representative, or
addressing the matters mentioned in paragraph 58 below.
I agree with the submission made by counsel for the applicant authorities in his further submissions dated 27 October 2017 (the last of the exchanged evidence and submissions) that the introduction of an argument that the local authority applicants owe a HRA s. 6 duty, to circumvent:
the previously agreed position that they owed no such statutory duty, and
the flaws in the earlier evidence and argument of the Secretary of State in these cases,
is potentially significant and would warrant oral argument if it is to be relied on as the basis for any part of my decision.
My preliminary view is that this new argument of the Secretary of State is wrong and runs counter to the decision on the obligations of a local authority in Re A and C [2010] EWHC 978 (in particular at paragraph 96) and its application in Staffordshire County Council v SRK and others [2016] EWCOP 27 and [2016] EWCA Civ 1317.
However, I have concluded that it is not necessary for me to hear oral argument on whether local authority (and other) applicants owe any such duty because on the assumption(contrary to my provisional view) that they do then:
the Secretary of State for Justice remains the Minister responsible for the administration and resourcing of the COP and so the Minister with the statutory duty to take the necessary steps to ensure that the COP, as a public authority, acts lawfully and so can apply a Convention compliant and fair procedure,
this statutory duty is not based on the HRA, rather is central to one of his functions, and so much more akin to the duties imposed on local authorities under the DoLS,
as accepted in JM, he or the MoJ would inevitably be a defendant to any action for breach of Convention rights founded on a failure by the
COP to adopt an Article 5 compliant procedure even if applicants also owe an Article 6 duty as now asserted by the Secretary of State,
this acceptance confirms the point that it is the Secretary of State who owes the relevant primary duty and so the COP can and should rely on him to take the necessary steps to ensure that the necessary resources to enable the COP to act lawfully, by applying a Convention compliant and fair procedure in the stayed cases, are provided by one or more public authorities in central or local government, and
if applicant authorities have an HRA duty it would be owed to individuals and not to the COP whereas in contrast, and as accepted in JM, the Secretary of State has a statutory duty to take steps to enable the COP to act lawfully as a public authority.
This means that even if local authority (and other) applicants owe an HRA duty and so might also be a defendant in any proceedings for damages for breach of the Convention by the COP the reasoning behind my decision in JM to join the Crown to all stayed applications remains intact. At paragraphs 160 to 164 I said:
160 The underlying approach of the Secretary of State has been to accept and advance [ one of the purposes ] 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:
Does the Secretary of State for Justice accept that the MoJ would be the appropriate defendant (as the department responsible for the administration of the court and the making of its rules) to any case alleging a failure by the court as a public authority to comply with the minimum procedural requirements of Article 5?
The Secretaries of State consider that in every case at least one of the four options (identified at paragraph 9 above [the four options I have referred to in this judgment]) will be available, practical and effective. The Secretaries of State consider that the Court will be able to make directions in every case that meet the minimum procedural requirements and therefore the situation posited by the question would not arise.
[A paragraph accepting responsibilities for the COP and its Rules]
The appropriate defendant(s) to any challenge would depend on the precise grounds pleaded by a claimant. But if a challenge were brought which complains solely about the actions of the Court vis-à-vis Article 5, it would require to be considered whether other public authorities, including the local authority which is detaining P, should be joined as defendant in the proceedings. The Secretary of State for Justice acknowledges his obligations in respect of the Court of Protection (as set out in the preceding paragraph) but is not able to comment further on the appropriate defendant to a hypothetical claim.
shows that unless the MoJ and the DoH (or one of them) are joined parties they will continue to seek to avoid any responsibility for the provision of resources on the ground that enable the COP to meet the minimum procedural requirements and this will cause further delays and difficulties.
161 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.
162 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.
163 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.
164 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.
Issues raised in these test cases
The first issue raised in these test cases is whether a welfare order approving a care plan advanced as being uncontroversial and which authorises any DOL caused by its implementation will have been made by a procedure that satisfies the minimum procedural requirements of Article 5 and common law fairness if P’s participation in the proceedings is through the appointment of a general visitor to prepare a report under s. 49 of the MCA and that report supports the making of that welfare order.
If the answer to that question is in the affirmative, the following issues arise, namely:
What approach should be taken by the COP to choosing this option or other options and in particular the appointment of a professional Rule 3A representative?
What directions should be given to a visitor on what he should do and report on?
Should the Crown be or remain as a Respondent?
Points (i) and (iii) necessitate an examination of the respective stances of the Secretary of State and the applicant local authorities on the available procedural options and so an examination of the evidence on the practical availability of a professional Rule 3A representative and the evidence the COP should require about this before appointing a visitor.
When there is no family member or friend who can act as a Rule 3A representative the other three potential options are a direction to an applicant authority (rather than a visitor) to provide a report under s. 49 of the MCA or the appointment of either a litigation friend or an accredited legal representative for P.
None of these are practically available options save possibly in an exceptional case. I include that proviso because one should “never say never” when the question of finding a lawful solution arises but for present purposes these options can be left out of account.
If there is no professional (or family member or friend) who is available to act as P’s Rule 3A representative, for the reasons set out in JM and the earlier cases there is no realistic prospect that:
an applicant authority could identify and instruct a professional to write a s. 49 report, or that
the Official Solicitor or anyone else would be available to act as P’s litigation friend. Progress has been made in training and identifying members of a panel of persons who could be appointed as accredited legal representatives, but the evidence does not suggest that there is any funding available that would enable the COP to appoint them in cases such as these and I not aware of any such funding.
Does the suggested appointment of a visitor to prepare a s. 49 Report provide a fair and Convention compliant procedure?
It is not suggested that visitors should be appointed as Rule 3A representatives and so the question is whether, without making P a party, the appointment of a visitor to write a report is a good enough option to provide the required procedural safeguards.
The applicant local authorities and the Secretary of State both assert that such an appointment would provide a fair and Convention compliant procedure because it would provide the essence of P’s Article 5 procedural rights that I said at paragraph 164 of my judgment in Re NRA & Others [2015] EWCOP 59 required an independent person to:
elicit P's wishes and feelings and make them and the matters mentioned in s. 4(6) of the MCA known to the Court without causing P any or any unnecessary distress,
critically examine from the perspective of P's best interests, and with a detailed knowledge of P, the pros and cons of a care package, and whether it is the least restrictive available option, and
keeping the implementation of the care package under review and raising points relating to it and changes in P's behaviour or health.
I agree, and I have concluded that the COP can give directions to a visitor, who is appointed as such to assist the COP on an application and a review that will enable it to obtain sufficient information to satisfy those minimum requirements and to make welfare orders on the papers without joining P as a party.
I have identified the directions I consider need to be made in these four test cases (and more generally) in the draft order set out in Schedule 2 to this judgment. They effectively require the visitor to address what a Rule 3A representative would address (see the explanatory note in Re VE [2016] EWCOP 16).
A visitor would not be involved in the provision or commissioning of the care package (see paragraphs 248 and 260 NRA), would be independent and would have relevant expertise.
I have suggested the appointment of a visitor as a possibility in earlier decisions (see paragraphs 34 and 127 to 129 of JM) and pointed out that:
the resource was not then available to make it a practically available option in a significant number of cases, and that
as and when a practical solution was available the need to consider whether the COP had the resources to deal with a significant increase in cases would arise.
In those earlier cases, I have also discussed the advantage of having a Rule 3A representative who can keep P’s placement and needs under review and if necessary trigger a return to court, and whether a professional Rule 3A representative would be able to do this independently and so not as a part of his role in the provision of the care package (see paragraph 150 of JM and paragraph 252 of NRA). I have also recognised that if P was joined as a party this level and type of review would be outside the role of a litigation friend (and probably an accredited legal representative) and that properly informed and sufficiently frequent periodic reviews by the court may be sufficient (see paragraph 252 and 261 of NRA and paragraph 150 of JM). Such periodic reviews would form part of the procedure advanced by the Court of Appeal in Re X (i.e. joining P as a party) and I accept that they would accord with Baroness Hale’s description of “a periodic independent check” in paragraph 57 of her judgment in Cheshire West.
I have therefore concluded, in line with my earlier approach and those of the Court of Appeal and the Supreme Court, that periodic reviews by the COP with the benefit of information provided by a visitor meets the procedural requirements. In comparison to the appointment of a family member or friend as a Rule 3A representative it can be said to have advantages because of the independence and expertise of the visitor but disadvantages because of the absence of a more regular review on the ground by someone who knows P and wants to promote their best interests.
The resource now being offered by the Secretary of State is limited by the assertion and so premise that applicant authorities can and so should be required to identify a professional Rule 3A representative in a significant number of cases and as appear below is directed to the existing backlog of stayed cases.
This raises the issue whether there is any change in the availability of such professional Rule 3A representatives since JM was decided. And, if not, whether the resource now being offered is likely to provide a medium or long term solution. This necessitates a consideration of the evidence.
As appears below, I have concluded that the present offer of resource is not likely to provide anything but a short-term solution. However, in my view this prospect and so a return to the present and very unfortunate situation that the COP has to stay applications that should be determined because it cannot determine them lawfully does not mean that it should not utilise this resource and the lawful procedure it provides for as long as it is available in practice.
Introduction to the issues: What approach should be taken by the COP to choosing this option or other options and in particular the appointment of a professional Rule 3A representative? Should the Crown be or remain as a Respondent?
General comment on the evidence and submissions
Disappointingly, nothing has effectively changed in respect of the practical availability of professional Rule 3A representatives and the respective stances of the Secretary of State and applicant local authorities.
In JM,I said:
Introduction
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. ----
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. -------. 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.
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A consequence of this conclusion of the Supreme Court [ in Cheshire West ] 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.
Overview
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).
This has the hallmarks of an avoidant approach that prioritises budgetary considerations over responsibilities to vulnerable people who the Supreme Court has held are being deprived of their liberty.
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 repeat that I acknowledge that the decision in Cheshire West has caused huge resource implications. The Law Commission has estimated the cost of full compliance at £2.155 billion per year. This goes well beyond the resource implications of cases of the type before me. But, as appears below, they have significant resource implications.
The Law Commission has recommended Liberty Protection Safeguards for people subject to an Article 5 deprivation of liberty. This perpetuates an approach based on the concept that there is (and, I hope, may be) such a deprivation of liberty.
That recommendation applies outside hospitals and care homes and so would remove the need for authorisation from the COP of cases such as these and puts responsibilities on local and other authorities in respect of the implementation of that scheme. It leaves open whether challenges to decisions made under that scheme will be to the COP or a tribunal. But, by definition, such challenges will involve a dispute. So, if and when this proposal is implemented the existing problems for the COP in uncontested cases will no longer exist. However, in my view this does warrant an approach that seeks to avoid the existing problems relating to how these cases are dealt with by the COP. Firstly, because the problems exist, the recommendation may not be accepted and enacted and, if it is, it will be some time before it is implemented. Secondly, the success of that recommendation will inevitably be influenced by the resources provided to implement it and so the response to Recommendation 33 relating to the need to review the adequacy of representation which mirrors the constructive discussions I urged in JM. It follows that such constructive discussions aimed at providing a professional resource to assist P would inform any proper implementation of Recommendation 33.
The evidence exhibited from the Liverpool City Council case was sworn in March 2017 and referred to a budget commitment in that month to establishing “a fair and more sustainable basis for adult social care, in the face of future demographic challenges” and to a Green Paper being published later in 2017 that will “set out proposals to put the system on a more secure and sustainable long-term footing”. This is to be welcomed but the progress in the formulation and publication of that Green Paper is not referred to in the evidence.
Also, the point that the high majority of the applications to the COP are presented as and are non-contentious property and affairs cases means that there is always a need to consider what impact recommendations focused on welfare decisions that result in a DoL (e.g. those relating to P’s wishes and feelings and the representation of P) will have on non-contentious property and affairs cases. In NRA, I referred to this and so to the risk that such welfare focused recommendations or procedures could lead to unnecessary burdens and costs to Ps in property and affairs cases.
Conclusions on the evidence
The evidence in these cases shows that the budgetary battles referred to in JM continue. Naturally, I recognise that we live in times of austerity but, like the evidence in JM and NRA, this round of evidence makes depressing and annoying reading for anyone with any compassion and knowledge of the position of Ps, and their families and carers, who are in similar circumstances to those that exist in these test cases.
Sadly, the evidence and submissions put in and relied on by the Secretary of State are a continuation of the avoidant approach referred to in JM and they fail to properly address many of the issues raised in my directions.
The Secretary of State filed and relies on evidence from a civil servant employed at the MoJ as a policy manager with responsibility for the Mental Capacity Act. Much of her evidence is unconvincing. I do not seek to blame her for this because I recognise that all she is doing is reflecting the stance of the Secretary of State which I have concluded is driven by budgetary issues.
As in JM, the evidence filed by and the submissions of the applicant authorities is more helpful and constructive.
The evidence sought by paragraph 1(f) of my direction. It is asserted that since JM the Secretaryof State has taken a number of steps to “increase the options open to the Court and the parties for dealing with these non-contentious cases”. Until the decision to provide funds to enable visitors to be instructed, this assertion is not borne out by the evidence and is not supported by the increase in the number of stayed cases. Also, I am unaware of what those steps are.
The evidence served by the Secretary of State does not show (or assert) that my conclusion in JM that a professional Rule 3A representative was not a practically available option in a significant number of cases was wrong. And the view that that conclusion was and remains right is powerfully supported by the evidence of the local authorities and the growing number of stayed cases.
The evidence served by the Secretary of State on the substantial funds and so on the increased resources “available to local authorities for adult social care” and the reliance therein on the decision in Liverpool City Council needs to be de-coded and analysed. When this is done, and as I have already remarked, it is misdirected and does not support the conclusion that local authorities have been provided with funding that should enable them to address the problems concerning P’s representation in non-contentious cases seeking a welfare order to authorise a DoL, let alone funding that the COP could require them to use for this purpose.
The evidence served by the Secretary of State sets out the following passage from the judgment in the Liverpool City Council case:
[the local authorities’ evidence] did not come close to establishing that any of the Claimant local authorities is unable to meet the cost of complying with its duties under the DoLS regime. Certainly, the evidence shows that doing so is, and will continue to be, extremely difficult; certainly the evidence suggests that complying with those obligations would necessitate diverting substantial sums from other parts of the Councils’ budgets. But it does not establish that the proper funding of the DoLS regime cannot be achieved.
When that citation is coupled with the citation in paragraph 15 above and it is remembered (as recognised in the evidence) that:
the cases before me do not engage the duties of local authorities under the DoLS regime and that,
when that evidence was given and the decision in the Liverpool City Council was made, the Secretary of State was not (as I understand it) asserting that the local authorities had any statutory duties to provide representation for P in the COP and so any expenditure on such representation was a candidate for diversion to the DoLS regime
this conclusion supports the local authorities’ case that they are and will not generally be in a position to provide such representation rather than the case advanced by the Secretary of State that this is a practical option in a significant number of cases.
The assertion, made in large measure by reference to the evidence given in the Liverpool City Council case, that the resources available to local authorities have increased since the date of the hearing in JM does not advance the Secretary of State’s position for the same reasons. Also, there is no evidence of it being linked to constructive discussions between central and local government directed to increasing the availability of professionals who could be appointed to act as Rule 3A representatives in cases of this type.
The reference in the evidence to the small number of local authorities who have managed to appoint Rule 3A representatives in cases that were stayed following the judgment in JM indicates that this was not the result of such constructive discussions because, as explained in the evidence, the GLD wrote to each of those authorities to ask for more details of those appointments for the purpose of preparing their evidence in these cases. This indicates that equivalent steps had not been taken earlier to establish that the position taken by the Secretary of State in JM and which I had rejected was justified or could be established by further evidence or constructive discussion. Sadly, it points strongly in favour of the conclusion that nothing was being done:
to enable or promote the appointment of professional Rule 3A representatives, and so
to demonstrate that the assertion in the standard term letters that this was an option was not an unjustified repeat of the position adopted and rejected in JM.
In any event this evidence, which refers to appointments in 33 cases, effectively confirms that the appointment of a professional Rule 3A representative in more than a few cases is not a practical option.The reference to a pilot scheme in Lincolnshire County Council leading to appointment of IMCAs as Rule 3A representatives in 21 cases does not assist. Not least because, as is fairly recognised in the evidence, Lincolnshire County Council does not consider that that it can fund this provision long-term.
The evidence served by the Secretary of State also omits any reference to:
steps taken to address the problems identified in NRA and JM, and confirmed in the evidence of the applicant authorities, relating to their contracts with the providers of professional representatives, the training of such representatives and the reluctance of many to take on the role of a Rule 3A representative because of the differences between that role and their role and relationship with P as an IMCA or a RPR, and so their independence (non-involvement in the provision of the care package) and/or their ability to act without any conflict as a Rule 3A representative,
the steps it is asserted the applicant local authorities can and should take to make persons who can and would agree to act independently and without conflict as a professional Rule 3A representative available, or
how the COP could enforce any direction it made that an applicant local authority should identify a professional Rule 3A representative and thereby not look to the Secretary of State to take the necessary steps by negotiation, action or otherwise to enable the COP to apply a lawful procedure.
Also, the Secretary of State has not addressed whether in the Liverpool City Council case it was asserted by them, contrary to their objection to and denial of any linkage in JM (see paragraph 93 of the judgment) that there was a link between duties owed by applicant authorities in these cases (pursuant to the HRA or the COP Rules or directions made under them) and those owed by local authorities under the DoLS regime (and so the New Burdens Doctrine). And if it was whether the change in position from that taken in JM was acknowledged and explained.
In contrast, the evidence of the applicant authorities provides a constructive and persuasive analysis that acknowledges that the role of RPRs provides the closest analogy to what a Rule 3A representative would be asked to do and confirms:
the existence of the problems referred to in sub-paragraph (i) of the last paragraph, and
their effect, namely that the Secretary of State’s preferred option does not provide a practical option for the resolution of the vast majority of cases when P does not have a family member or friend available to act as a Rule 3A representative.
The evidence sought by paragraphs 1(d) and (e) of my direction. A startling omission from the evidence served by the Secretary of State is any estimate of the likely number of applications and reviews that will be or should be made of welfare orders to authorise a DoL of Ps who do not have a family member or friend who can act as their Rule 3A representative.
Such an estimate is obviously central to any sensible consideration of:
the number of professional Rule 3A representatives that would be needed to enable those or a significant number of those cases to proceed on the basis that they were appointed, and so whether or not this is a practical option,
the number of those cases in which a visitor would need to be appointed for the same purpose, and
how the COP will manage the stayed cases and others that are brought and need review, which involves a consideration of the judicial and administrative resources of the COP.
As appears below, any such estimate shows that the possibility that the existing backlog of stayed cases falls well short of the number of cases in which welfare orders should and would be sought if they could proceed cannot sensibly be ignored. And so, neither can a consideration of:
how significantly increased numbers of applications and reviews would be dealt with and funded, and so
whether the potentially high total of fee income that these and other DoL applications would generate (and would be paid by applicant authorities) could or should be used to provide or assist in providing resources (judicial, administrative and through visitors) to enable the COP to adopt a Convention compliant and fair procedure.
The omission of any such estimate or consideration points to the conclusion, which I reach on the totality of the evidence, that the Secretary of State’s position is based on the following:
A failure to identify an evidential base for the existence of what the Secretary of State continues to assert to be the preferred and so available option to address the growing backlog of stayed cases (namely the appointment of a professional Rule 3A representative in a significant number of them).
An approach focused on the existing backlog that excludes the need for reviews and the likelihood or possibility that the existence of a procedure that allows cases to proceed to an order will increase the number of applications made and reviews that are needed.
A wish to end the practice of joining the Crown to cases of this type based on an assertion that the provision of unparticularised resources to provide visitors will be reviewed.
It is understandable that a commitment to an open-ended provision of resources to provide visitors cannot be given but:
the continued advancement of a solution that is not a practically available option, and in any event
the advancement of a solution that contains no adequate assessment of the resources that are likely to be needed to enable the COP to deal with cases of this type other than in the short term,
coupled with the history of the approach taken by the Secretary of State, lead inexorably to the conclusion that it would be very unwise to proceed on the basis that as and when the present backlog, or part of it is cleared, and problems about the representation of P in new applications for or in reviews of welfare orders arise, that the Secretary of State will, through the promised review of the resources, address them promptly or constructively.
Rather, I am sorry that I have to conclude that the evidence in these cases shows that it can be expected that history will repeat itself and the Secretary of State will persist in taking an avoidant and unconvincing “pass the parcel” approach to the problems which he has a statutory duty to resolve alone or through a constructive approach with the local and other public authority applicants.
In contrast, the local authorities do address the likely need for resources to provide visitors. They submit and I accept that:
The four individuals involved in these proceedings are among the estimated 53,000 people deprived of liberty outside hospitals and care homes which, the Law Commission calculates, would cost local authorities and the NHS £609.5 million per year to authorise by obtaining welfare orders from the COP.
It is not known how many of the 53,000 people would fall within the non-contentious class of cases identified in JM. But it is known that the number of deprivation of liberty applications to the COP has risen from 109 in 2013 to 3,143 in 2016, and
Between January and March 2017, there were 969 applications relating to deprivation of liberty, up 43% on the equivalent quarter in 2016 (678). Of these, 600 were Re X applications. And according to the Court’s order of 26 May 2017, approximately 230 cases were stayed pursuant to Re JM. (There are now about 330).
Suffolk refers to the estimate of the Law Commission of the likely number of cases requiring welfare orders to authorise a DoL (namely 53,000 a year, which would provide an annual fee income of £21,200,000) and to percentages of their cases that have been stayed. It has been successful in finding a family member or friend in a high percentage of its cases (in broad terms 90%).
Wolverhampton refers to the 24 applications it has brought over the last three years and estimates that three times the present number should have been brought and that the numbers are likely to increase with service users moving to supported living. It has identified 200 residential users suitable for a move to supported living and although it acknowledges that it is too early to say how many will be un-befriended it anticipates that a high proportion will be.
The evidence of both local authorities supports the view (taken by many at the time of and in JM) that an estimate based on past applications to the COP (for example the 1,000 uncontested applications taken by the Law Commission in its Impact Assessment for different purposes) is likely to considerably underestimate the number of such applications that should be brought and so would be brought if they were not going to be stayed. The Suffolk percentages indicate that 5 times that number per year (in broad terms 10% of 53,000 cases) should be brought or reviewed each year which would have to be stayed under the approach in JM because there was no family member or friend who could act as P’s Rule 3A representative.
I do not pretend that this analysis or any other forecast can be viewed other than within caution. And, like the local authorities, I accept that it is not easy to predict how many cases should be or will be brought each year in which P will not have a family member or friend who can act as their Rule 3A representative.
However, in my view, the possibility that the existing backlog falls significantly short of the number of applications and reviews that should and would be made if they could proceed cannot sensibly be ignored and so the approach of the Secretary of State which:
is expressed to provide resources to fund an additional 200 reports a year (and so 200 cases a year) taken with the ability of the existing visitors to clear a backlog of 230 cases (the figure mentioned in the evidence served by the Secretary of State, which has now increased), and
does not include any contingency planning for (or even any recognition of) significantly more applications and reviews
falls well short of an approach that properly addresses the problems.
Accordingly, the present resources that the Secretary of State has indicated will be provided is based on an inadequate assessment and it is highly likely that those resources:
will at best only provide a short-term fix,
will not to provide an ongoing resource that will enable the COP, to apply a fair and Convention compliant procedure in the applications and reviews that should and would be made and reviewed each year in cases such as those that have been stayed pursuant to JM, and so
absent further resources being provided, another backlog of these cases will build up or if that is avoided they will create significant delays in other types of applications to the COP
I repeat the warning that further judicial and administrative resources would be needed to enable the COP to deal with a significant increase in the number of such applications and reviews each year.
What approach should be taken by the COP to choosing this option (the appointment of a visitor) or other options and in particular the appointment of a professional Rule 3A representative?
There is common ground between the applicant authorities and the Secretary of State that the order of preference and so the COP’s first choice should be the appointment of a family member or friend as P’s Rule 3A representative.
Their disagreement relates to the second and third choices in that the applicant authorities assert that the second choice should be the appointment of a visitor whereas the Secretary of State asserts that it should be the appointment of a professional Rule3A representative (especially if one has already been involved in the case as, like a family member or friend, they will have the advantage of already knowing P).
The qualification to the position of the Secretary of State reflects the advantage I have identified and accepted that a family member or friend as a Rule 3A representative is in the best position to keep P’s position under review (see paragraphs 33 and 34 above).
It also engages arguments raised by the applicant authorities referred to in earlier cases and inparagraph 57 above, or as they put it in submission in these cases, the points that:
Advising on P’s best interests is at odds with a professional advocate’s role.
There is little if any capacity for professional advocates to take on the Rule 3A representative role.
Recruiting and training additional professional advocates can be problematic and costly.
Professional advocacy services are already overwhelmed by the demands arising from DoLS under Schedules A1 and 1A to the MCA.
Preliminary observation. A presumptive approach based on a sequential list of preferred options runs counter to the person and circumstances centred best interest approach that the COP should take. This needs to be remembered but does not mean that a sequential approach is not informative. Rather it means that it should not be determinative or given inappropriate weight.
The first choice on which they agree is the option that has least impact on their respective budgets. I agree that generally it is likely to be the best choice because of the advantages it gives in respect of review on the ground, and its recognition of the benefits conferred on P by the involvement of a caring family member or friend in this role and more generally.
The reality of the dispute on the second choice is that it is based on the budgetary battle between local and central government and so the practical availability of this resource by reference to the public funds available and the respective duties of local authorities and the Secretary of State.
In my view, the appointment of a professional who could act independently as a Rule 3A representative and carry out regular reviews of P’s placement and care package on the ground would in most cases be likely to have advantages over the appointment of a visitor because it would provide a better basis of and for review and equivalent expertise and independence to that provided by a visitor.
As I have said the Secretary of State does not address the issues referred to in paragraphs 57 and 77 above and paragraph 150 of JMand so has not provided any evidence to support an argument that such a resource is likely to be available as a preferred option in a significant number of cases.
Also, I have concluded that even if applicant local authorities owe an HRA duty:
the COP should look to the Secretary of State to provide the relevant resources to enable it to act lawfully, and
the appointment of professional Rule 3A representatives is still an option that is not practically available in significant numbers of cases.
The points made in the last four paragraphs mean that if I had to choose an order of preference as between the appointment of a professional Rule 3A representative and a visitor I would select that advanced by the local authorities.
However, this does not mean that the COP in exercising its best interests jurisdiction should not be informed about the availability of a professional Rule 3A representative in each case so that it can assess whether that person (who by definition agrees to act) would be a better option, for example, because of his continuing connection with P and the reliance the COP can place on his independence and expertise. Indeed, the need for this information arises from my preliminary observation that a presumptive approach is inappropriate.
The Secretary of State sensibly accepts in his evidence that generally the COP can and should accept an assertion from an applicant authority that a professional Rule 3A representative is not available for appointment at face value. I say sensibly because as recognised in the evidence of the Secretary of State (in different terms) it would be folly for the COP to require evidence about and to investigate such availability and so turn what is presented as an uncontroversial application into one that has a dispute which the COP probably could not resolve without hearing oral evidence and does not have the investigatory resources to conduct without having evidence called and cross examined.
This approach of the Secretary of State, like the letter dated 18 April 2017 referred to in my directions, supports the conclusion that in practice such professionals are not available for appointment in a significant number of cases and so the view that the disagreement about the order of preference is based on a wish to keep the budgetary issues, and so what central and local government should provide, alive.
The result of the COP proceeding on the basis that it will generally accept an assertion by an applicant authority that a professional Rule 3A representative is not available at face value is that in most cases the COP will appoint a visitor for so long as that remains a practically available option.
Should the Crown be or remain as a Respondent?
Although its joinder has not had the desired effect of acting as a catalyst for constructive discussions and proposals that properly address the problems, the evidence indicates that without it the present proposal relating to visitors may well not have been made and that, if the Crown is no longer joined, the prospect of there being a constructive consideration of the problems will reduce.
A reason to continue the joinder would be to enable the Crown to challenge an assertion that a professional Rule 3A representative was not available. But this has not been advanced and the Crown could ask to be joined to advance it.
In cases where a visitor is appointed (or some other available procedure is adopted to enable an application or review to proceed) there is no need to, or purpose for joining, or continuing the joinder of, the Crown. But, as soon as any such practically available process is no longer available I consider that, for the reasons given in JM and earlier in this judgment the COP should join the Crown to and stay such applications and reviews. I have reflected this conclusion in the orders I have made and the draft set out in Schedule 2.
The four cases
I set out a brief summary of the facts in Schedule 1 hereto. On the evidence advanced by the applicant authorities, all of the cases appear to be uncontroversial cases in which no person is available for appointment as a Rule 3A representative. Accordingly, I make orders that reflect the draft order in Schedule 2.
In all of them the application and the evidence supporting it is out of date and in KT it is over two years old. But even in that case the likelihood of significant change of what is needed to best promote the best interests of P at the same placement means that updating, as directed, is appropriate.
The way ahead
I suggest that the Secretary of State, the Public Guardian and the COP (through the Senior Judge) try to agree a process by which the stays are lifted in the approximately 330 stayed cases on the same basis as in these cases. It seems to me that in cases in which local authorities in reaction to invitations made in the standard letter, or as a result of updates (see the quotes in paragraphs 7 and 9 above), or otherwise have not sought to lift the stay an appropriate course would be for the Secretary of State to apply to lift the stay in a manner that ensures that a visitor will be available for appointment in each case. But I acknowledge that a different approach may be more convenient and enable the COP to clear the backlog more efficiently having regard to its available judicial and administrative resources and the availability of visitors.
Each case will involve consideration twice, firstly to direct a report by a visitor and then to consider what order should be made after that report is filed.
SCHEDULE 1
KT 12639619
Applicant: Suffolk County Council
Application dated 11 June 2015. Stayed 6 June 2016 – Crown added as a party.
Letter from GLD 4 April 2017
Present application 16 May 2017
Package of care and support at a supported living bungalow for three people in Ipswich described in the application and the evidence supporting it and in particular the ASC Care and Support Plan and the Best Interests Assessment.
A 29 year old woman who has been diagnosed with a learning disability and autism. She is non-verbal with serious historic behavioural problems and no concept of danger to herself or others. She needs 24/7 day and night 1:1 supervision.
Her father was appointed her property and affairs deputy in May 2015. He and her small family are and have been involved in her care and she has contact with them but none of them is in a position to and agrees to act as her Rule 3A representative.
Possible changes to the care package to make it less restrictive have been considered but none have been identified.
DR – 11777203
Applicant: Suffolk County Council
Application received January 2017. Stayed 6 April 2017 – Crown added as a party.
Letter from GLD 9 May 2017
Present application 18 May 2017
Package of care and support at his bungalow in Bury St Edmunds described in the application and the evidence supporting it and in particular the ASC Supported Housing Review and the Best Interests Assessment.
A 71 year old man with severe learning difficulties since birth. He moved to his present home in 2011 after a period of hospitalisation. He has a 24/7 and 1 or 2 to 1 package of care. He is not mobile and does not have the motor skills to feed himself. He needs chest and leg straps in his wheelchair. At home, he uses a Kirton type chair which is reclined when he is moved but requires one person to push the chair and another to support him when moved
He has no means of communication by voice or sign language or by pointing at pictures but he can shout when distressed. His carers have to anticipate and identify his needs.
He has a cousin who visits him but is not prepared to act as his Rule 3A representative but supports his care package.
Possible changes to the care package to make it less restrictive have been considered but none have been identified.
KH – 13017491
Applicant: Suffolk County Council
Application received 31 January 2017. Stayed 13 February 2017 – Crown added as a party.
Letter from GLD 3 April 2017
Present application 19 May 2017
Package of care and support at her supported living self- contained flat in Bury St Edmunds, where she shares a care provider with three other tenants described in the application and the evidence supporting it and in particular the ASC Supported Housing Review and the Best Interests Assessment.
A 59 year old woman who has suffered from autism and learning disabilities since birth. She moved to her present home in 2008. She has a 24/7 package of care. She is mobile and can access her garden and patio but cannot go out into the community without support because of her vulnerability and the risk of harm to herself and others (e.g. through her lack of road awareness). If she was not supported 24/7 she would be at significant risk of suffering distress because of her inability to occupy herself and to keep herself safe in the home.
She needs support with her personal hygiene and with eating.
She has very limited verbal communication.
Her mother visits and she goes to see her mother regularly. Her mother has health problems and is not prepared to act as her Rule 3A representative but supports her care package.
Possible changes to the care package to make it less restrictive have been considered but none have been identified.
DC – 11923185
Applicant: Wolverhampton City Council
Application received 16 November 2016. Stayed 7 December 2016 – Crown added as a party.
Letter from GLD 29 March 2017
Present application 3 May 2017
Earlier orders had been made under the Re X procedure covering care and supervised contact with his parents. This followed and reflected the result of an earlier order made in 2013 at time when the Official Solicitor was acting as DC’s litigation friend.
Package of care and support in his own flat within a supported living scheme in Wolverhampton described in the application and the evidence supporting it and in particular the Care and Support Plan and the Best Interests Assessment.
A 36 year old man who has a learning disability and mental health needs. He moved to his present home pursuant to earlier orders of the court. He is now well settled there. He has a 24/7 package of care. He is mobile but needs support with all daily tasks including personal care, eating, medication and accessing the community, although he has accessed the local shop on his own on the basis that if he did not return in 30 minutes staff would look for him. If this support was not provided there would be a risk he would be at risk of harm from self-neglect and from others in and away from his placement and that he may abscond. He was removed from the family home in May 2011 on the basis of alleged physical and emotional abuse from his mother.
He is able to communicate and appears to have a good memory but only some understanding of why he is living where he is with the support he has.
He has not had face to face contact with his parents since May 2015 and neither he nor they have sought. Telephone contact continues and has at times upset him. The issues that founded the orders for supervised contact and the history of contact mean that his parents should not be appointed as his Rule 3A representative and no other family member has been identified (e.g. sister) who could be.
Possible changes to the care package to make it less restrictive have been considered but none have been identified.
SCHEDULE 2
COURT OF PROTECTION No.
MENTAL CAPACITY ACT 2005
In the matter of
«pforename» «psurname»
ORDER LIFTING STAY AND FOR A SECTION 49 REPORT
made by «judge»/
issued from First Avenue House, 42 - 49 High Holborn, London, WC1V 6NP
made on «order_date»
issued on
Whereas
***** (“the Applicant”) has applied to the court for an order under the Mental Capacity Act 2005 authorising a deprivation of liberty in connection with the arrangements for the accommodation and care of ----------------------- [P]. That application was made pursuant to the streamlined procedure set out in Practice Direction 11A Part 2.
By order made on [ ], the application was stayed because no rule 1.2(2)(c) (then rule 3A) representative had been identified.
The Court is mindful of the decision of Charles J in Re KT and Others [2018] EWCOP 1.
Directions
The stay ordered on --------------------------- is lifted and the joinder of the Crown as a party is discharged but the Court may of its own motion or on application direct that the Crown be joined as a party without change of circumstances but particularly if it forms the view that it cannot or may not be able to proceed further in a way which is fair and satisfies the procedural requirement of Article 5.
By ----------------------------------- the Applicant is to file an updated care plan and either:
a statement identifying any material changes in any of the matters set out in the application and the evidence supporting it and if there are any such changes an appropriate update of the application and the evidence supporting it, or
if there are no such changes a statement confirming that this is the case and why a further best interests assessment is unlikely to elicit more information or to reach a different conclusion.
Requirement for section 49 report
A report is required pursuant to section 49 of the Mental Capacity Act 2005 in relation to --------------------- under Court of Protection case number --------------------
Person required to prepare the report (the author)
The report must be prepared by a Court of Protection Visitor who is a General Visitor.
Producing the report
The report must be made to the court in writing.
The report must be delivered to the court by first class post by ------------------- .
Context of report
(a) [summary of [P]’s living arrangements]
The package of care and support provided to [P] means that [P] is or may be being deprived of his/her liberty. If, as is asserted by the applicant authority, [P] does not have capacity to give consent to the package of care and support, it needs to be authorised by the court.
A report is required to assist the court in reaching its decision as to whether or not the package of care and support is in [P]’s best interests and so the deprivation of liberty it creates should be authorised by the making of a welfare order based on that package of care and support.
Content of report
The report must contain all the material required by relevant practice direction and be prepared in the form there specified.
The court is particularly interested in the following issues or questions and these must also be addressed in the report:
whether you consider that the Court should investigate whether [P] has capacity to consent to the package of care and support, or parts of it and any deprivation of liberty they create;
what [P] has said about, and P’s attitude towards, the package of care and support;
whether [P] wants to play any direct part in proceedings (eg by attending court or by communicating directly with the judge);
whether, considered from the perspective of [P], the package of care and support is the least restrictive available option that best promotes [P]’s best interests;
whether any of the restrictions which the package of care and support puts in place are unnecessary or inappropriate and should be changed and if you consider that they should be changed, in what way;
whether the package of care and support is being properly implemented;
whether an attended hearing is required (either because [P] wants to take direct part in the proceedings, or because any matters are disputed, or because you or someone else does not support the arrangements proposed by the applicant authority.)
Persons to whom report is likely to be disclosed
The report is to be prepared on the assumption that the court will pursuant to rule 14.24(4) send a copy of it to the parties and such other persons as the court may direct. The court further directs that the report be sent to the Applicant and its legal representatives and if it requests it the Government Legal Department [such other persons as the court may direct].
Persons to contact
[ Set out any persons that the author of the report may not interview ]
The author of the report is authorised to contact and seek to interview the following person(s) for the purpose of preparing the report, with their contact details provided by the Applicant (if it has them):
[P] alone or in the presence of such person or persons as the author of the report thinks appropriate;
the Applicant;
members of [P’s] family and providers of his/her package or care and support and any person providing health care to [P]; and
[ subject to paragraph 14 hereof ] any other person who the author of the report reasonably considers is likely to be able to provide information that is relevant for the purposes of the report in an appropriate way.
Access to records
For the purpose of enabling the author to prepare the report, [he/she] is authorised to examine and have a copy of the following, which relate to «pfor1» «psur1» and are relevant to the application:
a copy of the application form with annexes A, B and C (which include details of how the package of care and support is said to deprive [P] of his/her liberty and details of the consultations that have occurred with P and others about it);
the COP3 assessment of [P]’s mental capacity and mental health assessment;
the care plan, best interests assessment forms, risk assessment and placement plan (which set out why the applicant authority has reached the view that the package of care and support is the least restrictive available option to best promote the best interests of [P]);
the updated care plan and statements referred to in paragraph 5 above
any record of, or held by, a local authority and compiled in connection with a social services function,
any record held by a person registered under Part 2 of the Care Standards Act
2000 or Chapter 2 of Part 1 of the Health and Social Care Act 2008.
Record of lack of representation
Pursuant to rule 1.2(5), the Court records [P] has not been joined as a party and no representative has been appointed for him/her because [the Court is satisfied that it is not necessary to do so and no person willing and suitable to be so appointed was identified].
Other directions
This order having been made without a hearing or without notice to any person affected by it; [ -- P -- ], any party to the proceedings and any person affected by this order may apply to the court within 21 days of the order being served for reconsideration of this order pursuant to rule 13.4 of the Court of Protection Rules 2017 by filing an application notice (Form COP9) in accordance with Part 10 of those Rules.