The case of MOD & Others (Deprivation of Liberty) 2015 http://www.bailii.org/ew/cases/EWCOP/2015/47.html involved nine unrelated cases where Local Authorities were seeking test cases under the President’s new scheme for ‘fast-tracking’ Deprivation of Liberty authorisations.
You may recall that the Court of Appeal dealt with the President’s scheme as it was laid out in Re X (saying that he did not have the power to do this in a judgment, but as it wasn’t really a judgment they had no jurisdiction to overturn it on appeal, but that in any event, a scheme which didn’t include a voice for P – the person being detained, would almost certainly be wrong) http://www.bailii.org/ew/cases/EWCA/Civ/2015/599.html
There’s a Practice Direction for the fast track process now, which will need some slight tweaking in light of Re X.
Anyway, this is the first reported authority on how these ‘fast track’ cases will work in practice. The answer, in short would be “not well” and “not fast”
The problem here is that the current scheme for P to be represented is through the Official Solicitor. The Official Solictor told the Court that in the month after the Court of Appeal decided Re X (which was effectively the green light to start bringing the DoLs cases) requests doubled.
District Judge Marin said this:-
I understand that at present, about 100 applications have been issued since the Court of Appeal’s decision three weeks ago with more arriving each week. At the hearing, one local authority told me that they alone have “hundreds” that are to be issued imminently.
[If anything, that’s something of an understatement. The ballpark figure nationally is that up to 100,000 such cases might be issued in a year, as a result of the wider definition for restriction of liberty settled on by the Supreme Court in Cheshire West]
20….the Official Solicitor wrote a letter which is not only referable to the cases before me but also to all other similar cases where he has been invited to act.
- The Official Solicitor said this:
“..I am not currently in a position to accept the invitations to act as litigation friend in the ‘referrals’ in these cases.
I am most unlikely, on my current understanding of my budgetary position, to be able, even when I have established a light touch process for this class of case, which is nevertheless consistent with my duties as litigation friend, and the external outsourcing to fund them, to be able to accept invitations to act in more than a relatively small proportion of the total expected numbers of these former streamlined procedure cases.
Even before the dramatic increase for the month of June 2015 …. and these 43 actual and impending invitations to me to act as litigation friend in this class of case, in resource terms my CoP Healthcare and Welfare team was then running at or beyond full stretch, ‘fire fighting’ in a way that was unlikely to be sustainable beyond the short term.”
- He went on to elaborate:
“There has been an increase in the number of invitations to me to act as litigation friend (‘referrals’) for P in Court of Protection welfare applications, including applications for orders the giving effect to which deprives P of their liberty.
For the three calendar years 2011, 2012 and 2013 the number of new referrals a month averaged 28 cases. In 2014 this increased to an average monthly referral rate of 50 cases. In the five months to the end of May 2015, the monthly referral rate was in excess of 53 cases. In resource terms my CoP Healthcare and Welfare team was then running at or beyond full stretch, ‘fire fighting’ in a way that was unlikely to be sustainable beyond the short term.
There has been a dramatic increase for the month of June 2015 with 99 new referrals to the end of the month. But that number for June does not include the 43 new invitations to act to which I am responding. As at the end of May I had 137 referrals in my CoP Healthcare and Welfare team, in the ‘pre-acceptance’ stage (which clearly did not include these former streamlined procedure cases).
From time to time, I have taken those steps I have been able to take, having regard to budgetary constraints and balancing the needs of all my teams, to increase staff available to the work of the healthcare and welfare team as its caseloads have risen.
But, as has been frequently noted publicly, I do not have the staff resources to manage the expected significant additional increase in caseload arising from the decision of the Supreme Court in Cheshire West.”
- I am not currently in a position to accept the invitations to act as litigation friend in the referrals in these cases; and,
- I am most unlikely, on my current understanding of my budgetary position, to be able, even when I have established a light touch process, which is nevertheless consistent with my duties as litigation friend, and the external outsourcing to which have I referred above, to be able to accept invitations to act in more than a relatively small proportion of the total expected numbers of these former streamlined procedure cases.”
- As if to emphasise the seriousness of the matter, the Official Solicitor copied his letter to the President and Vice President of the court, the local authority applicants in the cases and the Ministry of Justice as his “sponsoring department”.
The Supreme Court have made a ruling that means there will be thousands more of this case, probably tens of thousands. The Court of Appeal has said that P must have a voice. The organisation who are responsible for P having a voice say that they are already operating at a referral rate four times that which they can actually take (and the deluge hasn’t even begun yet – it is something like 100 a month at the moment, and when these cases really get going, it will be more like five to eight THOUSAND a month)
As the wise Lucy Series has said, this is now an engineering problem, rather than a logical one. The system as it is, clearly is not going to cope with what is coming at it. And once we solve the representation of P problem, we will then have the Best Interests Assessor problem, then the social work problem, then the lawyers for relatives problem, then the Judges problem, then the Court time problem.
You can’t go from a system which just about functions at 25 cases a month and turn it into one that can handle 5,000-8,000 cases a month. Everyone in family law can tell the Court of Protection just how hard it was to cope with the post Baby P deluge, and that was at worst a doubling of demand. Here demand is going up TWO HUNDRED to THREE HUNDRED times.
We shall see what happens when these test cases come before Charles J, the vice president of the Court of Protection, but there really are no easy solutions here. The Law Commission has recognised the need for a complete overhaul of the law on DoLS, but that’s years off.
- So far as the remaining eight cases are concerned though, I decided to transfer them to the Vice President of the Court of Protection to decide issues at a hearing which I listed as follows:
1. Whether P must be joined as a party in a case involving deprivation of liberty
2. Whether the appointment of a rule 3A representative is sufficient in a case involving deprivation of liberty
3. If P must be joined as a party, in the absence of any suitable person to act as litigation friend, what should be done in circumstances where the Official Solicitor cannot accept an invitation to act.
4. Whether a family member can act as litigation friend in circumstances where that family member has an interest in the outcome of the proceedings.
5. Whether other deprivation of liberty cases not before the court on this occasion but which raise similar issues to this case should be stayed pending a determination of the issues recorded at paragraphs 1 to 4.
- With regard to the fifth issue, some of the parties expressed the concern that they have other cases listed and they were loathe to incur the cost of a hearing if a similar order is likely to be made or the court will stay the case pending determination of these issues. To address this, I have invited the Vice President to consider staying the cases presently listed such that hearings already listed may be vacated. It occurs to me that he may also wish to consider whether an automatic stay should be imposed on future cases that are issued.
- I have taken the course of referring these cases to the Vice President because it is vital that a decision is made on these issues as quickly as possible. None of the parties were equipped to fully argue the issues at the hearing as they would need to prepare: this is not a criticism as the issues were not identified until the hearing. There would therefore need to be another hearing and if so, it must make sense that this hearing produces a judgment from a senior judge which will set out the court’s view on these matters and direct the way forward. There will thus be a saving in time and costs which is consistent with the overriding objective in the court process.
- So far as the Official Solicitor is concerned, I do not discharge him in any of these cases and I have ordered him by 4pm on 22 July 2015 to file and serve on the parties a statement which shall:
1 Provide a full and evidence based explanation of why he cannot cope with the number of deprivation of liberty applications in which he is invited to act as litigation friend
2 Explain in full detail providing evidence where appropriate as to which areas or processes cause him difficulty and why
3 Inform the court when he expects to be able to cope with deprivation of liberty cases and the likely time scale in which he can start work on a case.
4. Provide any other information to the court that will assist the court to make decisions in this case regarding the position of the Official Solicitor.
- I believe that this information is vital to allow the court to properly consider his position.
- I am also anxious that the court can properly evaluate the availability of a litigation friend in all of the cases apart from MOD where one has been appointed. I therefore ordered the Applicants in each case by 4pm on 22 July 2015 to file a statement which shall:
1 Explain what steps have been taken to find a litigation friend for P
2 Set out whether IMCAs or other Advocates or resources are available to act as litigation friend or if not, why they are not available.
3 List all family members who are willing to act as litigation friend.
- I was asked in all the cases to approve the deprivation of liberty of P on an interim basis. I declined to do so because it seems to me that the effect of the Court of Appeal’s judgment is to demand a higher level of scrutiny than the Re X process demanded and on the information available which is in the form of Re X, I am unable to do so. There are also some cases where the information is incomplete. However, my order provides that applications for interim orders can be renewed at the next hearing.
- By setting out the issues as they emerged at the hearing and making the orders I have referred to, my aim is to ensure that matters can be adjudicated upon and resolved as soon as possible.