17 January 2018, by Bethan Harris
The case concerns the need for Article 5 compliant procedural safeguards for the incapacitated person (P) where a welfare order is sought to authorise P’s deprivation of liberty arising by virtue of the care plan.
Background to the case
The streamlined procedure under Practice Direction 11A and form COPDOL 11 allows for uncontentious applications for authorisation of deprivation of liberty to be determined on the papers without an oral hearing.
The question of what sort of representation P must have in court proceedings to authorise a deprivation of liberty, so that P is afforded Article 5 compliant procedural safeguards, has been the subject of much litigation – in the Re X proceedings and subsequently.
In Re NRA  EWCOP 59 Charles J ruled that P does not have to be a party to proceedings under the streamlined procedure and that procedural safeguards for P can be secured by appointing a friend or family member as a “Rule 3A” representative. Now, under the Court of Protection Rules 2017 this would be an appointment under Rule 1.2(2)(c).
In JM and others  EWCOP 15 Charles J held that where there is no-one available to be appointed to represent P in the streamlined procedure the court should join the Ministry of Justice and the Department of Health as parties, and stay the proceedings pending identification of a fair procedure.
As a result of the ruling in JM, some 330 were stayed because of lack of representation for P.
The decision in Re KT, DR KH and DC
These were 4 uncontentious applications for authorisation of deprivation of liberty which had been stayed following the ruling in JM. They were re-listed following the government’s agreement to provide funding for greater use of Court of Protection Visitors (s 61 MCA 2005).
Charles J’s decision includes the following:
- A Court of Protection General Visitor’s report under s 49 MCA 2005 satisfies the procedural requirements of Article 5 and common law fairness for P’s participation in the streamlined proceedings. This is on the basis that the court gives directions requiring the Visitor to address the relevant matters in the report. A draft order containing such directions is set out in Schedule 2 to the judgment. ( paragraphs 21 and 30)
- He was critical of the Secretary of State for “taking an avoidant and unconvincing pass the parcel approach to the problems which he has a statutory duty to resolve”. The Secretary of State had failed to address all the issues required in his directions in particular the “startling omission” from the evidence served of any estimate of the likely number of applications and reviews that will be or should be made for welfare orders to authorise a deprivation of liberty for Ps that do not have a friend or family member to act as their “Rule 3A” representative. (46, 60, 65)
- The Secretary of State’s proposal to fund an additional 200 reports a year and clear a backlog of 230, he concluded, is a short-term fix only and the problem would build up again. (71-72)
- Whereas a professional “Rule 3A” representative (such as an IMCA) would be able to carry out regular reviews of P’s placement and care package on the ground, there was no evidence to suggest that the option would be available in a significant number of cases.(81-82)
- In the 4 cases concerned – uncontroversial cases where no-one was available to act as “Rule 3A” representative – he made orders directing s 49 reports by a Court of Protection Visitor, reflecting the draft order set out in Schedule 2 to his judgment.
- He suggested that the Secretary of State, Public Guardian and the Court of Protection (through the Senior Judge) try to agree a process by which the stays on 330 cases following the ruling in JM are lifted on the same basis as these 4 cases. Each case would require to be considered twice: to direct a report by a Visitor and then to consider what order should be made after the report is filed. (95)
This clear endorsement of the use of Court of Protection General Visitors’ reports as an alternative means of representation of P and of ensuring that the streamlined procedure is Article 5 compliant will enable the backlog of stayed Re X cases to be dealt with, and other new cases to proceed where there is no-one to take on the role of Rule 3A/Rule 1.2(2)(c) representative.
However Charles J anticipated that the extra funding to be made available to fund more Visitors’ report is unlikely to be enough to fund the number of reports needed to plug the gap.
This issue is just one aspect of the huge resource implications of the decision in Cheshire West and our current system for authorisation of deprivation of liberty. The Law Commission calculates that the cost to local authorities and NHS of obtaining welfare orders in respect of the estimated 53,000 people deprived of their liberty outside hospitals and care homes would be £609.5 million per year.
The full judgment is available here: Re KT, DR, KH and DC  EWCOP 1, 15 January 2018, Charles J