2014 11 Incapacity

Re X & others (deprivation of liberty) (No. 2) [2014] EWCOP 37 (Sir James Munby, President): this is the second judgment to deal with procedural issues in the Court of Protection following the Supreme Court’s decision in P v Cheshire West Council [2014] UKSC 14. The President handed down the first judgment on 7 August 2014: here. In this second judgment, he answers three questions: does the patient (P) need to be joined to any application to the court seeking authorisation of a deprivation of liberty in order to meet the requirements of Article 5 or Article 6 or both? If so, should there be a requirement that P must have a litigation friend? If P or a detained resident requires a litigation friend, can that litigation provide legal or advocacy services without instructing legal representatives? The answer to the first question, both under domestic law and Convention rights, is P need not be a party. P should be given the opportunity to be joined and given the support necessary to express views about the application and to participate whether or not he or she is joined. Where P is participating other than as a party, there is no need for a litigation friend. Where P is a party, there is no fundamental principle of law that he or she requires a litigation friend. The Rules require that and that Rule requires consideration by the Committee reviewing the rules. Finally, where there is a litigation friend, he or she does not have to act by a solicitor and can conduct the litigation on behalf of P. A litigation friend who does not otherwise have a right of audience requires permission of the court in order to act as an advocate. The President asked that the Committee considering the rules give careful consideration to how best to craft a process which provides P with the speedy access to judicial determination given the real problems of an absence of legal aid, and of the litigation friend’s possible exposure to an adverse costs order. Click here for the judgment.