Re KT: securing P’s representation in capacity / DOL cases, revisited

January 29th, 2018

In Re KT (Incapacitated Persons) (Deprivation of Liberty: Appointment of Representatives) [2018] EWCOP 1, in one of his last judgments before retiring, Charles J considered again the question of the procedure to be adopted in so-called ‘non-contentious’ applications for welfare orders to authorise a deprivation of liberty. This is yet another stage in the ‘fall-out’ from the Supreme Court’s decision in Cheshire West, which transformed our understanding of what constitutes a ‘deprivation of liberty’ for the purposes of Article 5 ECHR and, at a stroke, enormously increased the burdens on the state, the Court of Protection and local authorities in having to arrange due authorisation of the placement of persons without capacity in care homes and supported living placements across the country. One particular issue that has arisen is how properly to secure the involvement of ‘P’ in the authorisation process.

In his hugely long judgment in Re NRA [2015] EWCOP 59 Charles J considered the judgments in Re X of the President ([2014] EWCOP 25 and 37) and the Court of Appeal ([2015] EWCA Civ 599). Charles J determined that it is not necessary for P to be joined as a party to proceedings in order for a deprivation of P’s liberty caused by implementation of a care package for P to be lawfully authorised by the Court. He held that the procedural safeguards required by Article 5 could be secured through the appointment of a family member or friend as a rule 3A representative for P, now in Rule 1.2 of the 2017 Rules. (The Rule 3A safeguards were, in summary, that an independent person: (i) elicits P’s wishes and feelings and make them known to the Court, (ii) critically examines the pros and cons and of a care package and whether it is the least restrictive option and (iii) keeps the implementation of the care package under review.) Alternatively, Charles J considered that the safeguards could be met by the Court directing the preparation of a report under s 49 of the Mental Capacity Act 2005 (“the MCA”) from someone with sufficient independence, such as a Court of Protection Visitor, and the issuing of witness summonses if need be. He also indicated that the procedural safeguards could be met by appointing a professional advocate as a rule 3A representative and that, if this were a practical solution, this would be preferable to the ordering of s 49 reports or making P a party.

However, in a subsequent decision (Re JM [2016] EWCOP 15 and 16, [2016] 4 WLR 64) Charles J determined that in most cases the appointment of a professional advocate by a local authority would not be a practically available option and that accordingly cases in which there is no family member or friend available to act as a rule 3A representative should be stayed. The cases in Re KT and Ors were four of the cases stayed in accordance with the judgment in Re JM. Charles J invited the Secretary of State to consider, in the light of his judgment in JM how these cases were to be managed and, in particular, whether Court of Protection Visitors could fulfil the requirements of the independent person and provide appropriate reports and, if so, how the necessary increase in Visitors would be resourced.

It is fair to say that it is apparent from the judgment in Re KT that Charles J was still not particularly happy with the arrangements that had made in the intervening year since Re JM regarding the appointment and resourcing of Visitors. Essentially, the evidence was that sufficient Visitors were in place to deal with the current backlog of cases in the system in a matter of months and that the Crown would thereafter keep the position under review and appoint additional Visitors if need be. Charles J made clear that he considered these arrangements to be inadequate given the estimates as to the numbers of cases likely to come into the system. The Secretary of State also maintained that the possibility of a local authority appointing a professional advocate should also always be borne in mind since, especially where there was someone with a prior connection with P, that would generally be the preferable option. Charles J was not particularly happy with that either as he viewed that as the option he had rejected in Re JM as unrealistic given the resources available to local authorities. Nonetheless, Charles J appears to have accepted that a ‘stalemate’ was not going to help anybody and that the process of appointing independent persons in the cases stayed behind Re JM needed to commence.

While he reiterated the position reached in Re JM which is that, where a suitable family member or friend is available to act as a Rule 3A (now Rule 1.2) representative, that will usually be the best option, Charles J declined the invitation of the parties to set an order of preference for the next-best option as between a professional advocate appointed by the authority and Court-appointed Visitor, but indicated that both options could be considered by the Court. He said that the Court would generally accept at face value an assertion by a local authority that a professional 3A representative was not available. In most cases, therefore, the Court will appoint a Visitor to prepare a s 49 report in these non-contentious cases, and give directions for the Visitor to review that report at appropriate intervals so as to secure compliance with the ‘continuous review’ safeguard. He noted that the Crown would not now need to be joined to these cases, unless or until it became apparent that there were difficulties with the availability of Visitors.

Jason Coppel QC and Holly Stout represented the Secretary of State.

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