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Legal aid, Court of Protection and ‘contrivance’

 

This is a Court of Protection case, and it is a Charles J judgment, which means that although it is important, it is complicated and challenging. If you aren’t working in the COP field, you can probably skip most of it and just go to the bits where Charles J is erm direct in his views about the Legal Aid Agency and the Secretary of State, who were both joined as parties.  That’s towards the bottom – and it is good stuff so worth a read purely for schadenfreude about those two massively popular bodies being taken down a peg or two.

The case involved a man who as a result of a road traffic accident in July 2015 had been unconscious since that time, and whether he should continue to have Clinically Assisted Nutrition and Hydration (CANH)

Clearly the man lacked capacity, so an argument about this would have to be dealt with under the Mental Capacity Act 2005 and in the Court of Protection. There’s absolutely and undoubtedly a valid argument to be had about whether the continuation of this treatment is in his best interests or not.

The case isn’t really about THAT argument, it is about a preliminary argument.

Is the application before the Court for :-

 

(a) section 5 and section 16 of the MCA  which allows the Court to consider all of the welfare issues set out in the MCA and make a best interests declaration ;

 

or

(b)  A challenge under s21A of the MCA – which relates to the Court’s powers to consider any aspect of P’s life or plans or arrangements for P if his liberty is being deprived.  I.e is it a DOLS case?

 

That seems to be sterile and academic, but actually it isn’t.  Because answer (b) can potentially attract non-means legal aid and answer (a) cannot.  So if the Legal Aid Agency granted legal aid on the basis of (b) it would be free to P’s wife to make the challenge and be represented in Court, and if they granted it on the basis of (a)  she would have to make a contribution, and in this case the level of those contributions would be at a level where she could not afford it and thus have to represent herself in proceedings about whether in effect her husband should be allowed to die.  (P’s wife and his family would like the CANH to be withdrawn and P provided with palliative care, the hospital would wish to continue the feeding treatment)

 

I have to say that my immediate view on this was that whilst P is not free to get up and leave the hospital, and he does not enjoy the same liberty as you and I, it is EXTREMELY hard to argue that the restrictions on his liberty is imposed on him by the State. They are surely a natural consequence of his medical condition.

Briggs v Briggs and Others 2016  EWCOP 48

http://www.bailii.org/ew/cases/EWCOP/2016/48.html

Charles J says this:-

 

 

  • The case has been argued before me on the premise that:

 

i) applying the decision of the Supreme Court in P (By His Litigation Friend the Official Solicitor) v Cheshire West and Chester Council and Another; P and Q (By Their Litigation Friend the Official Solicitor) v Surrey County Council [2014] UKSC 19; [2014] AC 896 (“Cheshire West”) Mr Briggs is being deprived of his liberty at the Walton Centre, andii) the Deprivation of Liberty Safeguards (the DOLS) apply to Mr Briggs (and so the point referred to in paragraph 101 of my judgment in LF v HM Coroner [2015] EWHC 2990 (Admin); [2016] WLR 2385 was not advanced).

One of the reasons for this was that the LF case is listed to be heard in the Court of Appeal before Christmas.

 

  • In any event, if I am right in AM v South London & Maudsley NHS & Secretary of State for Health [2013] UKUT 365 (AAC); [2013] COPLR 510 the DOLS may well continue to apply for some time to the circumstances in which Mr Briggs finds himself in the hospital (and on any move to another hospital) on the basis that he may be being deprived of his liberty.
  • I accept that this approach is a sensible one but record that it was made for and limited to the preliminary issue before me in this case. At least one of the parties indicated that it was not accepted that Mr Briggs was being deprived of his liberty and all parties reserved their right to argue that one or both of the underlying premises is incorrect.
  • I also make the general comments that:

 

i) the circumstances in which Mr Briggs finds himself flow inexorably from his accident, the damage that caused to his brain and body and the package of care and treatment that damage necessitated on and after his admission to hospital, and soii) to my mind, it follows that it cannot be said that his deprivation of liberty in hospital is imposed by others as, for example might be said in respect of the consequence of decisions made to admit and detain a person in hospital under s. 3 of the Mental Health Act 1983.

 

 

  • A standard authorisation under the DOLS in respect of Mr Briggs has been granted by the relevant supervisory body at the request of the Walton Centre. It expires in December.

 

I will cut to the chase – Charles J did decide to treat this case as a s21A case, and thus has found that Mr Briggs (P) is being deprived of his liberty and is entitled to make use (through his family) of the Deprivation of Liberty Safeguards.

 

  • 74. So if the result of the CANH issue is that it should be part of Mr Briggs’ treatment, I consider that:

 

i) pending a move to a rehabilitation centre, the authorisation of his deprivation of liberty at the hospital should no longer be governed by the standard authorisation (continued if necessary by the COP) but by the welfare order made by the COP although a continuation of a DOLS authorisation is a possibility,ii) so (unless there is an automatic termination) the existing DOLS authorisation should be terminated under s. 21A(3) as a direct consequence of the best interests CANH decision,

iii) the making of orders under s. 21A (6) and (7) may need to be considered, and

iv) how the deprivation of liberty at the rehabilitation centre is to be authorised should be addressed by the COP and it may be that any court order should end on the transfer and that reliance should then be placed on s. 5 of the MCA and a DOLS authorisation.

 

  • 75. Alternatively, if the conclusion of the COP on the CANH issue is that it should not be part of Mr Briggs’ treatment I consider that:

 

i) the position relating to Mr Briggs’ deprivation of liberty pending a move to another placement where Mr Briggs receives palliative care should be covered by a court order although if the treating team change their position authorisation under a continuation of a DOLS authorisation is a possibility,ii) so (unless there is an automatic termination) the existing DOLS authorisation should be terminated under s. 21A(3) as a direct result of the best interests decision as a direct consequence of the best interests CANH decision,

iii) the making of orders under s. 21A(6) and (7) will need to be considered, and

iv) how the deprivation of liberty at the new placement (probably a hospice) is to be authorised should be addressed by the COP.

 

  •  So I agree that the determinative or central issue is whether CANH is in Mr Briggs’ best interests and the conclusion on it should found an order under s. 16(2). But, in my view the consequences set out in the last two paragraphs mean that the determination of that issue by the COP founds and so is directly relevant to its consideration of its exercise of its functions under s. 21A (which it can exercise whether or not proceedings above have been issued under s. 21A).

 

 

{I’m very glad that I don’t work in a hospital legal department, because it is now very unclear to me whether every patient they have in an unconscious state or coma requires a DOLS authorisation. It is certainly a possible interpretation of this case}

 

Mrs Briggs argued in the case that s21A did apply . The Official Solicitor, the Secretary of State and the Legal Aid Agency argued that it didn’t, and that even if this WERE a DOLS case, there should be one non-means certificate to deal specifically with the issue of whether P’s liberty should be deprived, and another to deal with best interests decision about his care plan and treatment. The Hospital Trust were entirely neutral. It seems rather odd to me that nobody argued before the Court that the s21A issue is a contrivance using complicated legal finesse to attract non-means public funding to a situation where it doesn’t really apply.  (Perhaps they didn’t argue it because it appears that the idea emerged from decisions made by Charles J himself in other cases…)

 

 

  • It was not argued the proceedings issued by Mrs Briggs were an abuse or a contrivance. Indeed it was accepted that:

 

i) they were not,ii) the COP can grant relief under other sections of the MCA (and so under ss. 15 and 16) in an application under s. 21A (see Re UF [2013] 4289 at paragraph 11 and CC v KK [2012] EWHC 2136 (COP)), and so

iii) the COP could have granted relief in this case under ss. 15 and 16 if the only application before it had been that made by Mrs Briggs in reliance on s. 21A, and it could do this without directing that a further application be made,

iv) Practice Direction 9E, and no other Rule or provision, provided that an application “relating to” a best interests decision about serious medical treatment should be commenced in any particular way,

v) there was no difficulty in complying with Practice Direction 9E in proceedings issued in reliance on s. 21A and, in any event, Rule 26 of the COP Rules 2007 enables the COP to depart from it,

vi) whatever the result on the CANH issue Mr Briggs will continue to be deprived of his liberty and so when the COP determines that issue it will need to address how that deprivation of liberty is authorised, and

vii) on the approach taken in Re UF the authorisation under the DOLS (or a replacement) would remain in existence until the COP had decided the CANH issue and a decision about it under ss. 21A (3), (6) and (7) would or may be needed.

 

  • The points listed in the last paragraph are important because they mean that:

 

i) Mrs Briggs’ proceedings are proceedings under s. 21A and that applying Re UF until this case is decided by the COP an authorisation under the DOLS will remain in existence and so on any view those proceedings have an authorisation to bite on, and in my viewii) the COP can grant relief under s. 21A in an application brought for orders under ss. 15 and 16 of the MCA (the mirror image of Re UF and CC v KK).

 

  • Re UF addressed the same Legal Aid Regulation and identified a route (accepted by the LAA) that:

 

i) continued eligibility for non means tested legal aid although the COP (rather than the supervisory body) took the relevant decisions, andii) meant that what happened to that authorisation was a live issue at the end of the case.

 

  • My understanding is that the approach set out in Re UF has been applied in a number of proceedings brought under s. 21A which have turned on a detailed assessment of the relevant package of care, support and treatment, possible alternatives and which of them the COP has concluded will best promote P’s best interests.
  • So Re UF identified a route that the LAA accepted was not a contrivance by which non means tested legal aid was available albeit that the COP took over all decision making and could make decisions under ss. 15, 16 and 21A. Here Mrs Briggs’ proceedings came first and in Re UF separate proceedings seeking a welfare order and/or declarations had not been issued. Whether proceedings under s. 21A could be issued second to trigger eligibility to non means tested legal aid was not argued before me, but it would be surprising if the order of issue affected the application of Re UF and so the availability of non means tested legal aid. Also, it was not argued before me whether applying Regulation 5 non means tested legal aid could be given to both P and an RPR or only to one of them. I expressed the preliminary view that it could be given to both.
  • Experience indicates that many if not most cases brought under s. 21A in respect of a DOLS authorisation turn on the best interests assessment made by the COP and many lead to changes in the package of care, support and treatment to make it less restrictive rather than a change of circumstances that result in P no longer being deprived of his physical liberty and that these are implemented by or reflected in orders made under s. 21A varying the DOLS authorisation directly or by reference to the care plan it is based on or imposing conditions as a direct result of the best interests conclusion reached by the COP.

 

Charles J had THIS to say about the legal aid agency

 

 

  • The positions of the Secretary of State, the LAA and the Official Solicitor varied on the availability of non means tested legal aid for representation to present arguments on issues relating to the care, support or treatment of a P and so his care plan and needs assessment, and so on what the COP could properly consider and grant relief in respect of under or applying s. 21A:

 

i) the Official Solicitor submitted that non means tested funding for such representation was not available for any of such issues because they all related to the conditions of a detention and so were outside the ambit of the DOLS and s. 21A,ii) the Secretary of State submitted that such funding was available for representation on such issues if they related to “physical liberty”. As I understand the Secretary of State’s position that includes an examination of less restrictive conditions relating to physical liberty even though they also create a deprivation of liberty within Article 5 in the same or a different placement (e.g. a change from locked doors to door sensors and greater freedom of movement within a Care Home). But if that understanding is wrong, it is clear that the Secretary of State distinguishes between conditions that relate to physical liberty and those that do not – which, in the context of alternative regimes at the only available Care Home, it was submitted include the availability of en suite bathrooms or food choices or things of that nature. That distinction flows from the way in which the Secretary of State advanced his argument by reference to what is and is not covered by and so justiciable under Article 5, and

iii) although at the hearing it adopted the arguments of the Secretary of State on the meaning and effect of s. 21A and Regulation 5, the LAA was not prepared to commit to any circumstances in which it accepted that such funding was available for representation on such issues.

 

  • That stance of the LAA and experience of its general approach founds the conclusion that there is a real risk that:

 

i) it will seek to advance any point it considers to be arguable to avoid paying legal aid on a non means tested basis in respect of issues relevant to the circumstances of a P who is the subject of a DOLS authorisation,ii) in doing so, it will change its existing approach in such cases and so challenge Re UF and/or change the stance it adopted in that case,

iii) in doing so, it will adopt the position of the Official Solicitor and not that of the Secretary of State set out in paragraph 36 (i) and (ii) respectively.

 

  • After the hearing I was helpfully provided with further information by counsel for the LAA about its approach in the past and the future. This refers to the reliance placed on what the LAA is told and indicates that the approach in Re UF is being and will continue to be accepted and applied with the result that if the COP continues the DOLS authorisation non means tested legal aid will continue to be available in respect of applications about it. But it asserts that non means tested legal aid is (and has only been made) available in respect of matters that “relate directly to the discharge or variation of the standard or urgent authorisation” and that providers should always apply for a separate certificate to carry out non means tested services as and when these arise alongside a non means tested matter. This does not fully accord with the understanding of the solicitors acting for Mrs Briggs on the existing approach of the LAA and, more importantly it does not explain:

 

i) what matters the LAA says are directly related to the discharge or variation of a continuing DOLS authorisation, andii) whether it adopts the position of the Secretary of State or the Official Solicitor.

To my mind, although it seems to show that Re UF will continue to be applied this further information perpetuates uncertainty and so compounds the risk that the approach of the LAA will give rise to serious and possibly insurmountable hurdles being put in the way of challenges being made by Ps and/or their RPRs to a DOLS authorisation, and so the lawfulness of P’s deprivation of liberty, with the benefit of representation or at all because of the difficulties they would face in respect of contributions and as litigants in person.

 

 

Charles J also had this to say about the Secretary of State and the failure to provide proper scheme for legal representation in the avalanche of DOLS cases since the Supreme Court’s decision in Cheshire West opened the scope of such cases far wider than they had historically been.

 

 

  • The representation of P has been an issue in a line cases that do not fall within the DOLS but in which, applying Cheshire West, P is being deprived of his liberty and so that detention should be authorised by an order made by the COP. The last in the line is Re JM [2016] EWCOP 15. Those cases show the limitations on the availability of legal aid in such cases if they are not disputed. After the JM case, the Secretary of State has acknowledged in correspondence that, contrary to his stance in that case, a resource of people and/or of resources to provide people to act as representatives for Ps who are deprived of their liberty in such cases is not readily available. This means that:

 

i) in that type of case the COP cannot lawfully authorise the deprivations of liberty, and soii) such cases are being stayed, and

iii) many (probably in the thousands rather than the hundreds) of such cases are not being brought in part because they will be stayed and the costs of issuing them can be better spent.

 

  • We are all only too aware of problems flowing from austerity. But assessed through my eyes as Vice President of the Court of Protection the stance being taken by the Secretary of State in this case, and in and after Re JM, demonstrates the existence of a continuing failure by the Secretary of State to address an urgent need to take steps to provide resources that would enable the COP to deal with cases relating to probably thousands of Ps in a lawful way, and so in accordance with the procedural requirements of Article 5 and the requirements of Article 6. The result of this sorry state of affairs is that in probably thousands of cases not covered by the DOLS deprivations of liberty are not being authorised under the amendments made to the MCA by the MHA 2007 to comply with Article 5.

 

I think that most people practising in this area of work know that this is what is happening on the ground, but damn, it is nice to see the Secretary of State being told it in such clear terms.

 

For my part, I think legally that this is a pure device to get around the much loathed LASPO and it is a contrivance; but that it is surely the right outcome in terms of fairness. If anyone found themselves in the dreadful position that Mrs Briggs was in, surely they should have legal representation to help with the Court’s decision as to whether her husband should be fed via artificial means to keep him alive or whether he should be allowed to die with dignity in accordance with his family’s wishes.  Whatever stance you take on the right to die issue, surely it is unacceptable for the State to expect someone to have those difficult arguments without the benefit of legal representation.

 

 

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

23 responses

  1. As the NHS and Care Provision will, or are, indeed, already run on a commercially aware basis, we also have the problem, that their overriding duty is to profit.

    And, more profit can be made, by artificially feeding a patient indefinitely, than allowing him to die

    Similar considerations, appear to be being considered to reduce legal aid for representation, but the decision shows, that at least, for once, the judiciary is acting independently of the executive in Charles J’s welcome criticism.

    So, after all that bureaucratic, almost, if not impenetrable law, the sum total/purpose appears, the State wants to limit Legal Aid representation, even when a citizen is at risk of losing their liberty, despite, a thousand years of Magna Carta,. and the state’s agents, appear to support more profit being made by care providers.

  2. Is this not a bit of a sea change event, I always though the lawyers had a field day and you could wake up free but with all your assets eaten in legal fees?

    • Yes, the creation of the COP was a win win for everyone, except the poor vulnerable, was/is purported to be created for.

      • In spite of trying for 3 years I am unable to get aRPR to appeal my son Martin’s deprivation of liberty authorisation.I have been refused permission by the LA to apply on Martin’s behalf. Mr Justice Charles is aware that Martin has been deprived of his liberty for five years without authorisation, and for 3 years with authorisation. If Martin and I were allowed to appeal, we would not use legal aid, we would pay the solicitor. I refer to Charles’ judgment 2007 when he stated that the OS’s case was a shambles The OS was acting as Martin’s litigation friend in this case. In other cases where I have used a legal aid lawyer, they have been incompetent, and I have had no redress. What do I do now????????

      • All those imprisoned under the MCA are in the sameosition.

      • Shirley.

        On the face of what you say I would apply for writ of habeas corpus in the high court, you don’t need permission for that, is quite simple anyone can do it, I have in a child case, the court did not issue a habeas corpus writ but made a mandamus order to comply with the law to a lower court and local authority.

        Shortest Judicial review I know of, 1/2 hour and no other party was notified.

      • Shirley you can contact me via y facebook which is https://www.facebook.com/paul.jolliffe

        and some of my research

        http://independent.academia.edu/PaulRandleJolliffe

  3. ashamedtobebritish

    Shocking … money comes before people

  4. Pingback: Legal aid, Court of Protection and ‘contr...

  5. To Shirley, I continue here.

    What yours and their predicament graphically, and disgustingly, shows, is that neither family nor encaged for life, have any rights, and all treatment and residential services are unaccountable, for their services and medication, which cost a fortune, usually of public money, but as in your son’s case private trust money.

    And their are no safeguards.

    The Country that produced the Magna Carta, is the only country in the world, other than Scotland, who allows the removal of a citizen’s autonomy, and legal competency in the world.

    Worse still it is in a process which allows no opposition, as the state appoints all the players Official Solicitor, LA and RRP, is in secret and is inquisitorial, with no effective appeal. .

    This is why, and what the MCA was drafted for, to privatise and control all those who might be deemed in need of protection, remove all their decisions, and destroy their lives.

    And, it was sold to Parliament, as needed to increase legal competency and decision making and that is why it was drafted to apply only to a specific decision, that needs to be made in a person’s best interests, at a specific time, after all attempts have been made to ensure that the person has the capacity to make the decision himself, but all this overriding provision in the Act in s1, is being ignored.

    So the Act, is also being implemented illegally.

    • What would be covered by

      1. Contrary to what parliament intended
      2. Know generally as Ultra Vires

      That would be useful in a Habeas Corpus Writ application argument if coherently put and specific to the case with evidence

      The Habeas Corpus Act 1679 is an Act of the Parliament of England (31 Cha. 2 c. 2)[2] passed during the reign of King Charles II by what became known as the Habeas Corpus Parliament to define and strengthen the ancient prerogative writ of habeas corpus, a procedural device to force the courts to examine the lawfulness of a prisoner’s detention in order to safeguard individual liberty and thus to prevent unlawful or arbitrary imprisonment.

      This covers other forms of detention too. As I say I have used it in Family Child Proceedings.

      Writs can be used where other proceedings, procedure or standing are limited and Habeas Corpus is one of those, you apply in the High Court, not the COP. or Family Court etc and the proceedings are public unless the judge rarely says otherwise.

      Notice the word force the courts! Writs are quite surgical I tend you suggest that with Writs you are acting in a public interest matter requiring the Crown, via the High Court, to require that naughty public servants answer. Anyone can do that.

      The Act is often wrongly described as the origin of the writ of habeas corpus. But the writ of habeas corpus had existed in various forms in England for at least five centuries before and is thought to have originated in the 12th Century Assize of Clarendon.

      You mention Magna Carta 1215

      Habeas Corpus was guaranteed, but not created, by Magna Carta in 1215, whose article 39 reads: “No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor will we send upon him except upon the lawful judgement of his peers or the law of the land.” Now this is Section 29 of the Magna Carta 1297 which remains on the statute book to this day.

      The Act of 1679 followed an earlier Habeas Corpus Act of 1640, which established that the command of the King or the Privy Council was no answer to a petition of habeas corpus.

      Further Habeas Corpus Acts were passed by the British Parliament in 1803, 1804, 1816 and 1862, but it is the Act of 1679 which is remembered as one of the most important statutes in English constitutional history. Though amended, it remains on the statute book to this day.

      • Yes, we have the laws, but can’t enforce them, for want of willing/knowledgeable lawyers with no money to pay them, and judges willing to apply them.

        This is fascinating, and if we only had the system, very useful to the citizen, but if the MCA is not being enforced by courts, as it reads, then what hope for Habeas Corpus/Magna Carta ?

        What use, sadly, is our once relatively OK law, if it can’t be enforced ?

        Thank you so much for all this information, which would be difficult to get, and how much would be charged for such expert knowledge,

      • Habeas Corpus is simple and it should not have costs as it is a Crown Prerogative Writ, the application merely brings it to the attention of the Crown as a form of public duty, who then have a duty to issue it to answer the charge if they see cause, similar to as Private Prosecution does, there are NO COSTS unless it is a vexatious application, in which case I would expect a WASTED COSTS ORDER.

        I turned up at the RCJ Family Division (COP would be the same Division) asked for Urgent Habeas Corpus with below filed in and an affidavit and a witness statement, point of law and copy of the relevant statute and bit of evidence to show it being breached, filled in basic form. got normal application fees waived, ITS URGENT and duty of court to address it. Waited two hours with the witness and got to see a Justice Hogg who gave me right of audience, I am not a Bar or LawSoc Member and in half an hour, after she had questioned the witness, not on oath, who did the statement, a family member, she Gave the ORDER, it was very easy because I show the basis at law.

        I did not get costs neither should I have had to pay any.

        APPLICATION FOR WRIT OF HABEAS CORPUS AD SUBJICIENDUM
        IN THE HIGH COURT OF JUSTICE ____________

        IN THE MATTER OF (NAMES)
        AND
        ___________________________

        In the matter of an application for a writ of habeas corpus ad subjiciendum regarding (Names of detained)
        Pursuant to the Common Law & Habeas Corpus Act 1679 & Habeas Corpus Act 1816, I ________ do hereby make this application for writ of habeas corpus ad subjiciendum against ___________________ (regarding my relatives) (names) as above in the High Court of Justice _______________ to be moved on the date of this application or on a date to be set by the court for an order that a writ of habeas corpus be issued by the High Court directed to ___________________ to have the bodies of the said (names) before the High Court of Justice at such time as the Court or judge may direct upon the grounds set out below (and in the affidavit(s) and the exhibit(s) therein respectively referred or as may be otherwise submitted, copies of which affidavit(s) and exhibit(s) are attached herewith.) And that ________________ do answer to the court as to the lawfulness or unlawfulness of the detention of said ________________

        The basis of this writ is that (names) were (arrested/detained) on the ___ (month) 201_ by _______________ and are held unlawfully and have been held by __________________________ for ____ hours/days when the Common Law and Statutes requires ______________ under _______________ and that therefore the said (names) are therefore being held contrary to law.
        And that the costs of and occasioned by this motion be the applicant’s to be paid by the respondents to the application with an order for compensation to be paid upon determination in an amount of ______________ on the occasion of (names) being unlawfully held in custody/detention and further amount of _____________ for each further day of being so unlawfully held until they be: released or held lawfully
        And take notice that on the hearing of this motion that (I will use the affidavit(s) and any exhibit(s) therein or thereto or if the court shall so direct) I will require to give testimony under oath.

        _________________________________________

        Dated the ______day of Month YEAR

        This is an example of habeas corpus in a mental health case

        Patient released by High Court in habeas corpus application.
        (Published on Thursday, 6 March, 2008)

        An application before the High Court for habeas corpus was upheld by Mr Justice King on 4th March 2008. The application was based on the non-compliance by an approved social worker with the important requirements under section 11 of the Mental Health Act 1983 to consult the nearest relative of the patient, BB. The approved social worker had phoned BB’s father, who did not speak English, then spoken to BB’s sister. The social worker said that the sister had agreed that her brother be admitted for treatment, which BB’s sister denied. The judge heard oral evidence and as a result of cross- examination by Stephen Simblet, for BB, ruled that he was not satisfied that the social worker’s evidence was reliable. He ordered BB’s immediate release.

      • Wow, this could indeed be a powerful weapon, and thank you once again for sharing this information, as such is gold dust to all the many wronged and impotent.

        I hope this becomes common knowledge .

        And thank you for sharing a Writ Precedent

        I assume, the grounds under the MCA would be, that the standard assessment of incapacity, was not time and decision specific nor had all that was practical done to maximise capacity as required by s1 and the Code of practice, and therefore, illegal detention and/ or the necessary box ticking of the DOLs was not carried out.

        My fear is, that the LA would say, that standard general assessments such as that relied on, having been used in, by now, hundreds of thousands of cases and held to be a legal detention with the subsequent DOLs.

        And therefore the application is vexatious and costs awarded .

        If you did overcome this, and won, then you would have the wrath of the state on your back, and they would then apply law as stated in the MCA ie just change the questions to specific ones, and get an expert declare incapacity, and the victory would be pyric.

        We also live in different judicial times from 2008, and MHA was /is subject to judicial challenge although now, I believe, they propose getting rid of MHA Tribunals.??

        The Mental Health Commodities are now worth millions, to, mainly venture capital service providers for life, and so will be relentlessly pursued by a state, which appear to be able and allowed, to act as an enforcing cabal.

        Thank you for all this priceless information. I hope more use it, Information is scarce.

      • I would not at this point suggest what arguments to use, I rely at this moment on “has been deprived of his liberty for five years without authorisation” but I do not know why that is said at this time.But from all I have seen it is not beyond credibility, you may be right as well.

        Also that “I have been refused permission by the LA to apply on Martin’s behalf.” to me assuming the 1st issue has a factual and legal objective basis to be true and can be evidenced then the issue is standing to address this as an appeal which can be denied as the OS acts to represent in such matters and is not so appeal is not open.

        I merely say that Habeas Corpus can address such things, ‘five years without authorisation’, if the issue can be clearly demonstrated,I have done it, it was 3 months without lawful authorisation in the well know case I dealt with regarding several children and that was court orders for care without authority of statute, the court and LA had short circuited the law so a Justice ordered them to comply with the law,

      • I assume, to find if ‘reasonable cause to act’ the Court, will need representations from LA and Care provider.

        Their costs will usually, therefore be ordered against the applicant if they loose ?

        So prescriptive costs order application, as no point in Shirley throwing money away.

        I had got excited, thinking that HC, was a substantive weapon, sorely needed, to circumvent/ defeat the illegal use of MCA, but it appears, from the cases, were it succeeded, and as when DOLs opposition has succeeded, as with the Neary and main cases on MCA, it is merely a pyric victory, and does not affect the substantive illegal use of the MCA, and would therefore not secure Martin’s freedom.

        ie Martin is now ‘legally’ held under a DOL’S, or even if, present dols illegal ,the defect would then be rectified, so HC used to right the process, rather than deal with the substantive illegal application by the courts and state agents of the MCA provisions.

        If this be the case, Shirley would achieve nothing for all her stress and money.

      • Sadly, I have just thought of a huge disincentive, the usual nail in justice’s coffin, costs.

        If you lost, you’d risk being homeless.

        Would they grant a prescriptive costs order in public interest ? These, I assume, as creatures of statue are not as powerful as Writs, but sadly the threat of them is more effective.

        Any ideas, but love the idea that real old justice/ law might conquer all……………….

      • I would argue costs cannot be sought by them as

        1. Reasonable Cause to Suspect requires THE COURT TO ACT
        2. The Court must agree before issuing the writ
        3. There is therefore a case to answer
        4. It is not a normal civil claim between parties
        5. It is an action by the Crown upon one of its servants, have they Breached Their Duty to the Crown

        I would argue the Crown must make a costs order in applicants favour if found or not because the Habeas Corpus had to be issued and was, win they pay, loose Crown pays, just like in a Private Prosecution

      • OK I do Habeus Corpus. I need legal help – I will pay any amount. I am 82 – I get tired quickly, and the CoP has been continually hostile to me. I need a barrister who is not corrupt, and I need Martin to bring the case (I can use my EPA to do this. So Finola and Joliffe can we get started – with your help. Also this is a case of DISCRIMINATION

      • Shirley
        1stly Martin does not NEED to bring the case, he can but I would want to know more before being able to see if that is best, It can be brought by you if you wish, but I understand the EPA link, but does he have capacity to do that and does he need to? i am not looking to answer that here
        2ndly I am not a Solicitor or Barrister I am an analyst/researcher/strategist and spot flaws in systems applications, law is just another system and my focus is the faults and corrupted practices and people who have been failed and i have done that in many legal contexts in and out of court at all levels
        3rdly Pay any amount? At 82 this opens you up to potential problems such as being taken advantage of and I was not trolling for business, I normally only work by referrals so this is unusual for me, I will ignore this as money is never the1st thing I look at!
        4thly I am happy to give general advice free, principles and avenues etc and whilst I would be happy to look at doing more I would need to A. Look at more on the issues and B. Know more about circumstances of you both before I could decide If I can help directly and on what basis so its reasonable and fair which i always am,so times to fair.
        5thly I tend to deal only with short sharp surgical interventions, I am good at those and have done many, if its longer I tend to get people started and find people who can help in the longer term. I will just ask questions to assess.
        6th I am not one to run to Solicitors or Barristers if they are clearly not needed and they are not cheap but if wise I wont discount them or others who can do just as good a job, but in many instances my approaches are unusual or more properly less known or used, If in the more detailed circumstances I don’t think ‘I’ can help I will say so and why

        Finally its how we communicate as here is not appropriate with private data and if the blog owner is happy with that? In the circumstances he should I think say so because this is a very public blog and he is a Solicitor and that may or may not have implications for him. He cant stop us but, I do I think need to raise it,

        My facebook is https://www.facebook.com/paul.jolliffe

        and some of my research

        http://independent.academia.edu/PaulRandleJolliffe

  6. It would seem my reply is still awaiting moderation?

  7. Shirley you can contact me via my facebook where I did lots of these issues inc via PM which is

    https://www.facebook.com/paul.jolliffe

    Probably not sensible to discuss casese here, the info is too sensitive

    and some of my research

    http://independent.academia.edu/PaulRandleJolliffe

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