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Put paid to what you say, and put your money where your mouth is

That’s a line from one of my favourite Wonder Stuff songs, “Unbearable”, where the chorus goes “I didn’t like you very much when I met you / I didn’t like you very much when I met you / I didn’t like you very much when I met you / and now I like you even less”

And now, in a crunching change of gears, here’s a case in which every Local Authority Court of Protection lawyer has either said, or is about to say, “You know what, I’ve always loved Charles J”

Y’all don’t need to read this one unless you do Court of Protection work OR if you just enjoy watching a High Court Judge smack a Secretary of State upside the head, in a very respectful way of course.

Basically, as a result of the Supreme Court decision in Cheshire West (which I think was legally correct), there was an explosion in the number of Court cases coming before the Court of Protection to get legal authorisation for deprivation of liberty for P, which before Cheshire West were just being dealt with on the basis of ‘this isn’t really a detention, because that’s just what we do with people like P’.

That explosion in the number of cases was never accompanied by an explosion of additional resources, and the first major pressure point was the Official Solicitor, who had been able to give a voice for P in cases when there were about a hundred a year, but not in the thousands that were now coming at them. So a scheme was devised where the non-contentious authorisations could be done without P being represented – but then the Court of Appeal didn’t like that.

40.I repeat that I acknowledge that the decision in Cheshire West has caused huge resource implications. The Law Commission has estimated the cost of full compliance at £2.155 billion per year. This goes well beyond the resource implications of cases of the type before me. But, as appears below, they have significant resource implications.

If you haven’t read a newspaper since 2008, we don’t actually have a spare £2 billion a year sloshing around just waiting for someone to come and make good use of it. Whatever magic money trees can be shaken, their branches are now bare.

So in Re JM, Charles J posed the question directly to the MOJ and DoH – what’s your solution for having P represented? And where is the funding coming from? And he stayed some test cases to get an answer to that.

In Re KT, Charles J examines the answers given by the MOJ and DoH and finds them wanting.

Re KT (and Others) 2018

2.In JM, I concluded that applications made for welfare orders to authorise a deprivation of their liberty on the basis that they are not contentious should be stayed when no family member or friend is available for appointment as P’s Rule 3A representative. I also concluded that the Crown should be joined as a Respondent. This was because I concluded that central government, and in particular the Ministry of Justice (the MoJ), is primarily responsible for providing the resources needed to enable the Court of Protection (the COP) to adopt an Article 5 compliant and fair procedure. Also, that joinder enabled the MoJ (and the Department of Health – the DoH) to “put their money where their mouth was” by identifying professionals ready willing and able to act as Rule 3A representatives in the stayed cases and thereby establish the solution they had maintained local authority (and other) applicants could provide, but I had concluded was not practically available.

3.The number of stayed cases has grown steadily. There are now over 300 such cases in which the MoJ and DoH (alone or together with the relevant applicant local authority or other public body) have not been able to identify a professional who the COP could appoint to act as P’s Rule 3A representative.

4.The JM judgment is dated 10 March 2016. Over a year later, in letters sent in late March and early April 2017 to applicants in stayed cases the Government Legal Department (the GLD) indicated that Ministers had agreed to provide funding to HMCTS to enable greater use of visitors by the COP.

5.Such letters prompted the applications in these four test cases to lift the stays imposed on the basis that a visitor was to report.

These bits are helpful to the LA, and arrive from documents filed by the Secretary of State early on in the proceedings

87 The answer in the note provided by Counsel for the Secretary of State at the beginning of that hearing was as follows (with my emphasis):

22. [The deponent] referred to the local authorities existing statutory duties in paragraph 4 of his second witness statement. This was a reference to local authorities’ statutory duties in respect of DoLs generally under the Mental Capacity Act 2005. For the avoidance of doubt, it is not suggested that there is any specific statutory obligation that requires a local authority to arrange or fund the appointment of rule 3A representatives.

23. The Department’s position is that rule 3A representation is one of the potential methods for the Court to consider, so as to ensure that the process meets the Article 5 minimum requirements in a particular case, but the Department does not seek to impose any new obligation on local authorities or any other bodies.

24. The Department does not say that the obligation to provide the resources to meet the minimal procedural requirements necessarily falls on local authorities. But that local authorities are public authorities who have responsibility for compliance with Article 5, in the same way as other public authorities have such responsibility. Which public authority is required to take steps to comply with Article 5 will depend on the facts of each case. For example, a local authority would not be obliged to provide resources if the Article 5 minimum procedural requirements were met by the appointment of a family member or friend as a rule 3A representative.

25. For the avoidance of doubt, it is not asserted that the local authorities responsible for funding the appointment of any litigation friend.

If you are thinking to yourself, that sounds good, then hello and welcome to the blog, dear first-time reader.

If you are instead thinking to yourself, I bet having given those assurances very clearly and cogently I bet the Secretary of State later filed documents completely and utterly resiling from that reasonable and proper concession and probably did so at the last possible minute and tried to sneak it in under the radar, then hello darkness my old friend, I’ve come to talk with you again. OF COURSE, that’s what the Secretary of State did, because that’s exactly what they always do.

If you are in Court with any Secretary of State and they offer in a document a perfectly sensible and appropriate concession that would spare everyone huge time and effort litigating a position that they would lose ultimately if they decided to fight it, don’t believe it unless the Minister is actually prepared to have the words tattooed on their face for all to see. And probably not even then.

[I’m reminded of Hoftstadter’s Politicians Syllogism – (a) Politicians lie (b) Cast Iron sinks therefore (c) Politicians lie in cast iron sinks]

14.The volte face is that for the first time, the Secretary of State asserts that local authority applicants owe a duty under section 6 of the Human Rights Act 1998 “to facilitate the speedy resolution of the application by (for example) ensuring that a professional advocate is appointed to represent P’s interests so far as necessary”. In the very last sentence it is then asserted that this duty: “falls into the same category as the DOLS duties which were considered in Liverpool City Council”. This is a radical departure from the position taken by the Secretary of State in JM in connection with the New Burdens Doctrine (see paragraph 93 of JM cited above).

Charles J didn’t like that much, and ruled that EVEN if the Secretary of State was right (and he may not be), then the buck ultimately stops with the Secretary of State to provide FUNDING for LA’s in order that they can do that. Yay!

17.I agree with the submission made by counsel for the applicant authorities in his further submissions dated 27 October 2017 (the last of the exchanged evidence and submissions) that the introduction of an argument that the local authority applicants owe a HRA s. 6 duty, to circumvent:

i) the previously agreed position that they owed no such statutory duty, and

ii) the flaws in the earlier evidence and argument of the Secretary of State in these cases,

is potentially significant and would warrant oral argument if it is to be relied on as the basis for any part of my decision.
18.My preliminary view is that this new argument of the Secretary of State is wrong and runs counter to the decision on the obligations of a local authority in Re A and C [2010] EWHC 978 (in particular at paragraph 96) and its application in Staffordshire County Council v SRK and others [2016] EWCOP 27 and [2016] EWCA Civ 1317.

19.However, I have concluded that it is not necessary for me to hear oral argument on whether local authority (and other) applicants owe any such duty because on the assumption (contrary to my provisional view) that they do then:

i) the Secretary of State for Justice remains the Minister responsible for the administration and resourcing of the COP and so the Minister with the statutory duty to take the necessary steps to ensure that the COP, as a public authority, acts lawfully and so can apply a Convention compliant and fair procedure,

ii) this statutory duty is not based on the HRA, rather is central to one of his functions, and so much more akin to the duties imposed on local authorities under the DoLS,

iii) as accepted in JM, he or the MoJ would inevitably be a defendant to any action for breach of Convention rights founded on a failure by the
COP to adopt an Article 5 compliant procedure even if applicants also owe an Article 6 duty as now asserted by the Secretary of State,

iv) this acceptance confirms the point that it is the Secretary of State who owes the relevant primary duty and so the COP can and should rely on him to take the necessary steps to ensure that the necessary resources to enable the COP to act lawfully, by applying a Convention compliant and fair procedure in the stayed cases, are provided by one or more public authorities in central or local government, and

v) if applicant authorities have an HRA duty it would be owed to individuals and not to the COP whereas in contrast, and as accepted in JM, the Secretary of State has a statutory duty to take steps to enable the COP to act lawfully as a public authority

That’s exactly the way to despatch the cheap shot from the Secretary of State – which was the equivalent in a game of tennis of the opponent saying “oh, hold on, can I just tie my shoelaces?” and responding “Sure, that’s fine” and THEN SERVING THE BALL anyway and trying to claim the point. (My friend Scott once broke his ankle during a tennis match and his opponent wandered over to peer down at him writhing in agony on the turf and just said quietly “I’m afraid that’s game, if you can’t continue”)

Conclusions on the evidence
45.The evidence in these cases shows that the budgetary battles referred to in JM continue. Naturally, I recognise that we live in times of austerity but, like the evidence in JM and NRA, this round of evidence makes depressing and annoying reading for anyone with any compassion and knowledge of the position of Ps, and their families and carers, who are in similar circumstances to those that exist in these test cases.

46.Sadly, the evidence and submissions put in and relied on by the Secretary of State are a continuation of the avoidant approach referred to in JM and they fail to properly address many of the issues raised in my directions.

47.The Secretary of State filed and relies on evidence from a civil servant employed at the MoJ as a policy manager with responsibility for the Mental Capacity Act. Much of her evidence is unconvincing. I do not seek to blame her for this because I recognise that all she is doing is reflecting the stance of the Secretary of State which I have concluded is driven by budgetary issues.

48.As in JM, the evidence filed by and the submissions of the applicant authorities is more helpful and constructive.

Stop all the clocks, cut off the telephone, prevent the dog from barking with a juicy bone. Yes, you read that correctly. A Judge just praised a Local Authority for helpful and constructive evidence. Let aeroplanes circle moaning overhead.

(You don’t often get Auden, Simon and Garfunkel and Miles Hunt in the same piece of legal writing. You’re welcome.)

The Secretary of State did not provide any information as to the volumes of people affected or the costs of any such scheme.

A startling omission from the evidence served by the Secretary of State is any estimate of the likely number of applications and reviews that will be or should be made of welfare orders to authorise a DoL of Ps who do not have a family member or friend who can act as their Rule 3A representative.

61.Such an estimate is obviously central to any sensible consideration of:

i) the number of professional Rule 3A representatives that would be needed to enable those or a significant number of those cases to proceed on the basis that they were appointed, and so whether or not this is a practical option,

ii) the number of those cases in which a visitor would need to be appointed for the same purpose, and

iii) how the COP will manage the stayed cases and others that are brought and need review, which involves a consideration of the judicial and administrative resources of the COP.
62.As appears below, any such estimate shows that the possibility that the existing backlog of stayed cases falls well short of the number of cases in which welfare orders should and would be sought if they could proceed cannot sensibly be ignored. And so, neither can a consideration of:

i) how significantly increased numbers of applications and reviews would be dealt with and funded, and so

ii) whether the potentially high total of fee income that these and other DoL applications would generate (and would be paid by applicant authorities) could or should be used to provide or assist in providing resources (judicial, administrative and through visitors) to enable the COP to adopt a Convention compliant and fair procedure.
63.The omission of any such estimate or consideration points to the conclusion, which I reach on the totality of the evidence, that the Secretary of State’s position is based on the following:

i) A failure to identify an evidential base for the existence of what the Secretary of State continues to assert to be the preferred and so available option to address the growing backlog of stayed cases (namely the appointment of a professional Rule 3A representative in a significant number of them).

ii) An approach focused on the existing backlog that excludes the need for reviews and the likelihood or possibility that the existence of a procedure that allows cases to proceed to an order will increase the number of applications made and reviews that are needed.

iii) A wish to end the practice of joining the Crown to cases of this type based on an assertion that the provision of unparticularised resources to provide visitors will be reviewed.
64. It is understandable that a commitment to an open-ended provision of resources to provide visitors cannot be given but:

i) the continued advancement of a solution that is not a practically available option, and in any event

ii) the advancement of a solution that contains no adequate assessment of the resources that are likely to be needed to enable the COP to deal with cases of this type other than in the short term,

coupled with the history of the approach taken by the Secretary of State, lead inexorably to the conclusion that it would be very unwise to proceed on the basis that as and when the present backlog, or part of it is cleared, and problems about the representation of P in new applications for or in reviews of welfare orders arise, that the Secretary of State will, through the promised review of the resources, address them promptly or constructively.
65.Rather, I am sorry that I have to conclude that the evidence in these cases shows that it can be expected that history will repeat itself and the Secretary of State will persist in taking an avoidant and unconvincing “pass the parcel” approach to the problems which he has a statutory duty to resolve alone or through a constructive approach with the local and other public authority applicants.

Foolish, because the LA’s did…

66.In contrast, the local authorities do address the likely need for resources to provide visitors. They submit and I accept that:

i) The four individuals involved in these proceedings are among the estimated 53,000 people deprived of liberty outside hospitals and care homes which, the Law Commission calculates, would cost local authorities and the NHS £609.5 million per year to authorise by obtaining welfare orders from the COP.

ii) It is not known how many of the 53,000 people would fall within the non-contentious class of cases identified in JM. But it is known that the number of deprivation of liberty applications to the COP has risen from 109 in 2013 to 3,143 in 2016, and

iii) Between January and March 2017, there were 969 applications relating to deprivation of liberty, up 43% on the equivalent quarter in 2016 (678). Of these, 600 were Re X applications. And according to the Court’s order of 26 May 2017, approximately 230 cases were stayed pursuant to Re JM. (There are now about 330).

Charles J looked at the sticking plaster solution that the DoH/ MoJ were proposing

71.However, in my view, the possibility that the existing backlog falls significantly short of the number of applications and reviews that should and would be made if they could proceed cannot sensibly be ignored and so the approach of the Secretary of State which:

i) is expressed to provide resources to fund an additional 200 reports a year (and so 200 cases a year) taken with the ability of the existing visitors to clear a backlog of 230 cases (the figure mentioned in the evidence served by the Secretary of State, which has now increased), and

ii) does not include any contingency planning for (or even any recognition of) significantly more applications and reviews

falls well short of an approach that properly addresses the problems.
72.Accordingly, the present resources that the Secretary of State has indicated will be provided is based on an inadequate assessment and it is highly likely that those resources:

i) will at best only provide a short-term fix,

ii) will not to provide an ongoing resource that will enable the COP, to apply a fair and Convention compliant procedure in the applications and reviews that should and would be made and reviewed each year in cases such as those that have been stayed pursuant to JM, and so

iii) absent further resources being provided, another backlog of these cases will build up or if that is avoided they will create significant delays in other types of applications to the COP
73.I repeat the warning that further judicial and administrative resources would be needed to enable the COP to deal with a significant increase in the number of such applications and reviews each year.

Charles J had to consider whether a professional independent Rule 3A representative would be better than a visitor doing their best. It isn’t a surprising analysis

81.In my view, the appointment of a professional who could act independently as a Rule 3A representative and carry out regular reviews of P’s placement and care package on the ground would in most cases be likely to have advantages over the appointment of a visitor because it would provide a better basis of and for review and equivalent expertise and independence to that provided by a visitor.

82.As I have said the Secretary of State does not address the issues referred to in paragraphs 57 and 77 above and paragraph 150 of JM and so has not provided any evidence to support an argument that such a resource is likely to be available as a preferred option in a significant number of cases.

83.Also, I have concluded that even if applicant local authorities owe an HRA duty:

i) the COP should look to the Secretary of State to provide the relevant resources to enable it to act lawfully, and

ii) the appointment of professional Rule 3A representatives is still an option that is not practically available in significant numbers of cases.
84.The points made in the last four paragraphs mean that if I had to choose an order of preference as between the appointment of a professional Rule 3A representative and a visitor I would select that advanced by the local authorities.

85.However, this does not mean that the COP in exercising its best interests jurisdiction should not be informed about the availability of a professional Rule 3A representative in each case so that it can assess whether that person (who by definition agrees to act) would be a better option, for example, because of his continuing connection with P and the reliance the COP can place on his independence and expertise. Indeed, the need for this information arises from my preliminary observation that a presumptive approach is inappropriate.

86.The Secretary of State sensibly accepts in his evidence that generally the COP can and should accept an assertion from an applicant authority that a professional Rule 3A representative is not available for appointment at face value. I say sensibly because as recognised in the evidence of the Secretary of State (in different terms) it would be folly for the COP to require evidence about and to investigate such availability and so turn what is presented as an uncontroversial application into one that has a dispute which the COP probably could not resolve without hearing oral evidence and does not have the investigatory resources to conduct without having evidence called and cross examined.

87.This approach of the Secretary of State, like the letter dated 18 April 2017 referred to in my directions, supports the conclusion that in practice such professionals are not available for appointment in a significant number of cases and so the view that the disagreement about the order of preference is based on a wish to keep the budgetary issues, and so what central and local government should provide, alive.

88.The result of the COP proceeding on the basis that it will generally accept an assertion by an applicant authority that a professional Rule 3A representative is not available at face value is that in most cases the COP will appoint a visitor for so long as that remains a practically available option.

So, IF you can have a professional Rule 3A representative, you should have one, if the LA says there isn’t one the Court should accept their word for it rather than carrying out a long, painstaking and expensive enquiry into that, and if there isn’t one, we’ll have to make do with the COP appointing a visitor to do it.

The way ahead
94.I suggest that the Secretary of State, the Public Guardian and the COP (through the Senior Judge) try to agree a process by which the stays are lifted in the approximately 330 stayed cases on the same basis as in these cases. It seems to me that in cases in which local authorities in reaction to invitations made in the standard letter, or as a result of updates (see the quotes in paragraphs 7 and 9 above), or otherwise have not sought to lift the stay an appropriate course would be for the Secretary of State to apply to lift the stay in a manner that ensures that a visitor will be available for appointment in each case. But I acknowledge that a different approach may be more convenient and enable the COP to clear the backlog more efficiently having regard to its available judicial and administrative resources and the availability of visitors.

As Charles J indicated earlier, even this is just a sticking-plaster solution – just to be in place until something is properly worked out

37.As appears below, I have concluded that the present offer of resource is not likely to provide anything but a short-term solution. However, in my view this prospect and so a return to the present and very unfortunate situation that the COP has to stay applications that should be determined because it cannot determine them lawfully does not mean that it should not utilise this resource and the lawful procedure it provides for as long as it is available in practice.


About suesspiciousminds

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

5 responses

  1. I’ll read this, I promise, but just now…. I got as far as the Simon & G quote, checked the judgment and found it only 17 paras long, went back to yr blog, then – ping – it can’t be 17 paras, I thought, it’s Charles J. And the order with teh judgment is 17 paras. The judgment is 95 paras. I’ll get back to it.

  2. I first me Charles in September 2007 as a litigant in person in the CoP Case No11525163 judgments in the public domain, but they were not put on Bailii. There is now a judgment in the continuing case from HH Judge Parry on Bailii, although the first judgment from her 8 August 2017 is still not on Bailii, despite my many requests. The case from the very beginning in 2006 has been regarding MB’s capacity. Please read the 16 October judgment – this is a judgment under the MCA “capacity must always be assumed”!!!!!!!! The S21A challenge to the DOLS was issued on 28 March 2017 and never came before the judge. MB is now in legal no man’s land, and his mother and brother are powerless. I really would like your comments.

  3. Sorry met Charles forgot the t

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