Capacity

Wednesday 31 August 2011

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Re X and others (Deprivation of Liberty) (No. 2)[2014] EWCOP 37 (Sir James Munby President of the Court of Protection): Further to his preliminary judgment on 7 August 2014, the President held that so long as the demanding standards were met that require that P should have access to the court , for which typically P will need some form of representation, professional though not necessarily always legal, and that P should always have the opportunity to be joined as a party if he wishes and be supported to express views about the application and participate in the proceedings to the extent that P wishes, there is as a matter of general principle no requirement, whether in domestic law or under the Convention, for P to be joined as a party. There is no obstacle to P participating and being represented in proceedings in the Court of Protection without being joined as a party. If P is participating other than as a party there is no need for a litigation friend. At present Rule 141(1) requires that P, if a party, has a litigation friend. A litigation friend can conduct the litigation on behalf of P without instructing legal representatives. If a litigation friend does not otherwise have a right of audience the permission of the court will be required to act as an advocate on behalf of P. These matters require to be considered by the ad-hoc Committee on the rules. The need to meet the demanding standards of Art. 5 must not be allowed to lead to a system of technical requirements which may in the real world operate to deny P the speedy access to a judicial determination which is the very essence of what is required. Click here for judgment.

New Practice Direction 10AA : In the light of the Re X decisions referred to above, the Practice Direction on deprivation of liberty applications has been replaced with a new version which new also deals with applications under s 16(2)(a) MCA for orders authorising a deprivation of liberty under the new “streamlined procedure”. These are to be made using the form COPDOL 10. It is intended to revise these procedures following feedback and consideration by the Committee on the rules (see letter from James Batey to court users, 6 November 2014 available on the Court of Protection Handbook website - click here.)

Cases A & B [2014] EWCOP 48 (Peter Jackson J): The judge drew attention to 2 cases exemplifying delay and expense in CoP proceedings. In one of them P himself paid £69,000 from his damages in legal costs and in the other the proceedings had lasted 5 years and the total estimated legal costs were £530,000. The case management strategies in rule 5 of the CoP Rules had not been applied. The delay caused protracted stress for P and families and was a drain on the time and energy of social work and medical professionals who have to service the needs of the proceedings alongside their normal responsibilities. The great majority of the cost fell on the state when public money is in short supply. A common driver of delay and expense was the search for the ideal solution, leading to decent but imperfect solutions being rejected. People with mental capacity to do not expect perfect solutions in life and the requirements of s 1(5) MCA 2005 to act in a person’s best interests calls for a sensible decision, not the pursuit of perfection. The role of the litigation friend in representing P’s interests is not merely a passive one discharged by critiquing other peoples’ efforts: he is entitled to research and present any realistic alternatives. The main responsibility for the situation must lie with the court. The time has come to introduce the same disciplines in the CoP as now apply in the Family Court. A copy of the judgment would be sent to Sir James Munby for his consideration. Click here for judgment.

Rochdale MBC v KW (by her litigation friend) & Others[2014] EWCOP 45 (Mostyn J):KW who was cared for in her own home was not deprived of her liberty, contrary to the contentions on behalf of KW and the local authority. KW was granted permission to appeal to the Court of Appeal, the judge anticipating that the case would then proceed quickly to the Supreme Court. KW is 52 and severely physically and mentally impaired following a stroke. Her care arrangements entailed the presence of carers at all times. She had a tendency to try to wander off in which case she would be brought back. She is ambulant with the use of a wheeled zimmer frame. Care was provided by an independent contractor but devised and paid for by Rochdale and the CCG. The majority opinions of the Supreme Court in the Cheshire West case are binding on the court. This case was similar to that of MIG inasmuch as both involved so called constraints on an incapacitated person living at home. The key element of the objective test is whether a person is “free to leave”, which did not just mean wandering out of the front door. It meant “leaving in the sense of removing herself permanently in order to live where and with whom she chooses” (see JE v DE and Surrey County Council [2006] EWHC 3459 per Munby J at para 115, implicitly approved in the Supreme Court at para 40). Whereas MIG had the mental capacity to make the decision to leave in the sense described and the physical capacity to leave, KW did not have the physical or mental ability to exercise such freedom. Where a person often elderly who is both physically and mentally disabled to a severe extent and arrangements happen to be made by the local authority, Art 5 is simply not engaged. This was not suggesting that it was impossible for a person ever to be deprived of their liberty in the confines of their own home. The matter should be reconsidered by the Supreme Court. Click here for judgment.

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