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Tag Archives: deprivation of liberty

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

http://www.bailii.org/ew/cases/EWCOP/2018/1.html

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.

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Medication, ooh, medication, medication – that’s what you need

An interesting case decided by Recorder Howe QC, which touches on a number of important legal principles (and also to boot contains a lot of masterful understatement like this :- “Unfortunately, T was not proficient with the use of the toaster”)
T (A Child: Care Order: Beyond Parental Control: Deprivation of Liberty: Authority to Administer Medication) [2017] EWFC

http://www.bailii.org/ew/cases/EWFC/OJ/2018/B1.html

The key legal questions in this case were :-

1. When a Local Authority has DOCUMENTS (but not witnesses) who assert A, how much weight does the Court give that hearsay evidence where a live witness disputes A ?

2. Does the limb of threshold ‘beyond parental control’ require the Local Authority to prove any culpability on behalf of the parent – or is it effectively a ‘no fault’ threshold?

3. If a child’s liberty is being restricted AND a care order/interim care order is in force, does Keehan J’s assertion in Re AB (that a parent can consent to this, but not where a care order/ ICO is in force) remain good law after the Re D appeal?

4. Where a child is prescribed medication and the parent objects to that medication, can the Local Authority use their powers under s33 of the Children Act 1989 to consent to it, or is an order of the Court required?

These are all really good questions, and I’m pleased to see so many of the cases that I’ve blogged about coming into this judgment.

T was undoubtedly a very challenging child. He is now 13 years old and has autism. Dr Singh described his behaviour at the residential unit


67. As explained by Dr Singh in his report, T exposes himself to the likelihood of significant harm by:

(a) pulling out his hair from his head and pubic area;

(b) dismantling appliances and furniture;

(c) ripping off and tearing his clothes;

(d) smearing faeces and

(e) kicking-in doors when angry.
68. When angry and upset, Dr Singh describes that T will:

(a) bite;

(b) gouge at the faces of staff members;

(c) pull hair;

(d) spit;

(e) pull staff by the arms;

(f) hit and scratch.

Within the mother’s care, T was doing many of these things and I give this as a particular example

The behaviour did escalate and T then began digging holes in the walls, which was an activity M was unable to prevent and exposed T to the risk of significant harm as he would expose electrical wiring when digging into the walls within the house. I was told about 1 very large area on one wall that T had dug into that measured some 2 meters or so across and as far up the wall as T could reach

Let us look at the first question

1. When a Local Authority has DOCUMENTS (but not witnesses) who assert A, how much weight does the Court give that hearsay evidence where a live witness disputes A ?

The Recorder analyses the law in this regard with precision and brevity. I can’t improve on that, so I’ll just quote him in full

In describing the background to the current applications, I will address some matters upon which the parties do not agree. I will give my findings on these disputed matters when setting out my narrative of the history and when doing so I apply the following principles:

(i) The burden of proving an allegation rests with the party who is making it;

(ii) The standard of proof is the simple balance of probabilities;

(iii) Findings must be based on evidence and on inferences that can properly be drawn from the evidence but cannot be based on mere suspicion or speculation;

(iv) Evidence cannot be evaluated and assessed in separate compartments. A judge in these cases must have regard to the relevance of each piece of evidence to other evidence and exercise an overview of the totality of the evidence in order to come to a conclusion.
12. In her closing submissions, Ms Wordsworth relies upon the judgment of the President in Darlington Borough Council v M and Others [2015] EWFC 11, as endorsed by the Court of Appeal in J (A Child) [2015] EWCA Civ 222, where at §56 Aitkens LJ said:

“Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing. If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in “great, or indeed insuperable” difficulties in proving the fact or matter alleged by the local authority but which is challenged.”
13. It is M’s case that she has provided her response to a number of matters in the witness box and, where her oral evidence is in conflict with a recording put to her, it is submitted that I should prefer M’s oral evidence where the author of the recording has not appeared before me.

14. Hearsay evidence is admissible in these proceedings concerning a child but I must carefully assess the weight to be given to any hearsay evidence, particularly where that hearsay evidence is disputed by M. When undertaking this task, I have reminded myself of the views expressed by Hayden J in Westminster City Council V M, F and H [2017] EWHC 518 (Fam), where at §25 he said:

“The Local Authority must, ultimately, assess the manner in which it considers it can most efficiently, fairly and proportionately establish its case. The weight to be given to records, which may be disputed by the parents, will depend, along with other factors, on the Court’s assessment of their credibility generally. Here, the reliability of the hearsay material may be tested in many ways e.g. do similar issues arise in the records of a variety of unconnected individuals? If so, that will plainly enhance their reliability. Is it likely that a particular professional e.g. nurse or doctor would not merely have inaccurately recorded what a parent said but noted the exact opposite of what it is contended was said? The reaction of witnesses (not just the parents), during the course of oral evidence, to recorded material which conflicts with their own account will also form a crucial aspect of this multifaceted evaluative exercise. At the conclusion of this forensic process, evidence can emerge and frequently does, which readily complies with the qualitative criterion emphasised in Re A (supra)…

I would add to my analysis above the observations of Dame Elizabeth Butler Sloss in Re T [2004] EWCA Civ 558 at §33:

“Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.”

The LA have to take stock as to whether to call witnesses where the documents are disputed – it is going to depend on the nature of the evidence and the presentation of the witness who disputes the documents. There’s obviously a risk in not calling the witness, but it has to be weighed up how to efficiently fairly and proportionately establish the LA case.

2. Does the limb of threshold ‘beyond parental control’ require the Local Authority to prove any culpability on behalf of the parent – or is it effectively a ‘no fault’ threshold?

The law on this is annoyingly fuzzy.

In Re K (Post-Adoption Placement Breakdown) [2013] 1 FLR 1, His Honour Judge Bellamy, sitting as a Judge of the High Court (this is the ‘forensic ferret’ case) considered that it was NOT necessary to prove or for the Court to find that the parents were culpable or responsible for the child being beyond parental control – it was sufficient to prove that the child WAS suffering significant harm and that the child was beyond parental control with the fact that he or she was beyond parental control being a contributory cause to the harm. A contributory causal relationship between the harm and the child being beyond parental control suffices. (i.e Re K says that you can find threshold met on beyond parental control WITHOUT the parents having to be to blame for this)

BUT

In Re P [2016] EWFC B2 (26th January 2016), Her Honour Judge Redgrave gives a judgment in which she expressly disagrees with the decision of HHJ Bellamy in Re K. The facts of the case were similar in many ways. The child P had suffered significantly disrupted early attachments that had caused her to develop serious mental health problems. P was adopted but that adoption broke down as a result of the behaviour displayed by P. The local authority did not attribute any culpability to the parents for P suffering harm as a result of her behaviour but attributed the significant harm to P being beyond parental control. Upon the local authority applying to withdraw the proceedings, HHJ Redgrave was invited by the parents to determine whether threshold would have been met had the proceedings continued; the central issue being whether the section 31(2)(b)(ii) requirements were met on the facts as alleged by the local authority. It was argued by the parents that as P was exposing herself to significant harm as a result of her mental health problems, there was no evidence that this was in any way attributable to the fact that she was beyond parental control and, therefore, threshold was not satisfied.

80. At §15 of her judgment, HHJ Redgrave says:

“Under the Children and Young persons Act 1969 the courts had the power to remove a child from the care of his/her parents if it was satisfied that the child in question was beyond parental control. It was not necessary to show serious harm, or likelihood of harm. The Children Act 1989 changed the law and required harm/likelihood of harm to be proved and for it to be attributable to either the care given by the parents, or the child being beyond parental control. In my judgment the ordinary grammatical construction of the section requires the establishment of a causal connection by evidence, however slight. That is lacking in the documents filed in this case and with respect I cannot agree with Paragraph 149 of HHJ Bellamy’s judgment in Re K (see above). Therefore I give the local authority permission to withdraw these proceedings on the basis that it is unlikely on the current evidence to be able to prove threshold.

There is no evidence of any kind that either the mother or the father are culpable in any way for the behaviour of their daughter and the harm she has suffered or is at risk of suffering in the future. They have fought tirelessly for her to receive the treatment she needs and in my judgment these proceedings should never have been issued.”

I will be very candid – I don’t like the decision in Re P – I think it is important, and indeed fundamental to the construction of the threshold criteria that there are some situations in which a child can be suffering significant harm as a result of their behaviour being uncontrollable where the Court can make the orders needed to manage the child WITHOUT the parents being blamed. It crops up a lot on adoption breakdown cases, but also happens with parents as here who are dealing with incredibly challenging behaviour. So I have a horse in this race – I think Re K is right, and Re P (respectfully) is wrong.

So this part of the judgment had me on the edge of my seat (I’m easily intrigued)


86. If I was to follow the reasoning adopted by HHJ Redgrave, a child who was suffering significant harm by reason of being beyond the control of the parent, but due to the characteristics of the child’s illness or impairment and not for any lack of parental effort or ability, the child could not, if the parent objected, be removed to safe care as threshold would not be met.

87. The facts of T’s case demonstrate the difficulty. M does not recognize that T is beyond her control. M has not been able to prevent T from exposing electrical wires, removing pipes from the boiler so as to cause the leakage of carbon monoxide or eating and smearing his own faeces. M has been unable to prevent T from removing his own clothes or been able to require him to dress when in company. T was, in my finding, beyond M’s control. When undertaking all of these activities T has, in my finding, suffered significant harm or been likely to suffer significant harm.

88. I have found that M has minimized the difficulties that she has experienced in providing care for T. His actions arise as a result of his ASD and learning difficulty and Dr Singh has advised that any home carer would be unlikely to be able to meet his needs. If I was to accept that section 31(2)(b)(ii) was only activated if a child was beyond parental control by reason of some want of effort or ability by a parent rather than as a consequence of T’s impairments, that would undermine the ability of any local authority to protect children without embarking on a finding of fault exercise that will, in many cases such as this, be an enquiry that the local authority will wish to avoid.

89. I have said repeatedly, during the course of this hearing, that caring for T must have been hugely challenging for M. It is impossible not to have sympathy and compassion for her given how T’s behaviours developed in ways that M could not have predicted. I have made findings that M did not always accept and act on advice and those findings do, in my judgment, satisfy section 31(2)(b)(i) and I so find. However, in my judgment, it is important to recognize that section 31(1)(b)(ii) was intended to be a true ‘no fault’ limb of the threshold criteria. A child can expose itself to harm by reason of its own behaviour, whatever the cause for that behaviour, and the state needs to have the ability to intervene and protect such children from the harm they cause to themselves if they do not respond, or are unable to respond, to the attempts of their parents or carers to protect them. Therefore, it is necessary in my judgment to interpret the wording of section 31(2)(b)(ii) “in the manner which best gives effect to the purposes the legislation was enacted to achieve”.

90. In my judgment it is immaterial whether a child is beyond parental control due to illness, impairment or for any other reason. The court simply has to consider if, on the facts, the child is beyond the control of the parent or carer. If that condition is satisfied, the court then has to determine if the child is suffering or is likely to suffer significant harm as a result of being beyond the control of the parent. If the answer to that 2nd question is ‘yes’, then section 31(2)(b)(ii) threshold is, in my judgment satisfied.

91. I find, on the basis of the factual determinations I have made in the paragraphs above, as summarized in §87, that the threshold criteria under section 31(2)(b)(ii) are satisfied.

It isn’t a settled or binding answer, but it is certainly weight to put into the scales when deciding whether the Re K (no fault needed) or Re P (parental fault is needed) line is to be followed. I agree with these conclusions. I hope that it gets properly cleaned up in precedent soon.

3. If a child’s liberty is being restricted AND a care order/interim care order is in force, does Keehan J’s assertion in Re AB (that a parent can consent to this, but not where a care order/ ICO is in force) remain good law after the Re D appeal?

I’m pleased to say that Recorder Howe QC and I are in accord on this. (I’m not sure that I ever quite grasped WHY Re AB reached that decision, but we both agree that it remains the law, having been only mentioned en passant by the Court of Appeal in Re D)

136. I have been referred to the decision of the Honourable Mr Justice Keehan in AB (A Child: Deprivation of Liberty) [2015] EWHC 3125 (Fam).

137. I have also considered the judgment of the President in Re D (A Child) [2017] EWCA Civ 1695. At §109, Munby P says:

“I should, for the sake of completeness, refer to [Keehan J’s] intervening judgment in In re AB (A Child) (Deprivation of Liberty: Consent) [2015] EWHC 3125 (Fam), [2016] 1 WLR 1160. This concerned a 14-year old boy, subject to an interim care order, who had been placed in a residential children’s home in circumstances which Keehan J found met Storck component (a). The question was whether, given the existence of the interim care order, either the parents or the local authority was entitled to consent for the purposes of Storck component (b). Keehan J held that they were not. That, as will be appreciated, is not an issue before us on this appeal. ”
138. Given that appeal decision in Re D did not affect the judgment given in Re AB, that decision remains good law. At § 29 of his judgment in Re AB, Keehan J stated:

“Where a child is in the care of a local authority and subject to an interim care, or a care, order, may the local authority in the exercise of its statutory parental responsibility (see s.33(3)(a) of the Children Act 1989) consent to what would otherwise amount to a deprivation of liberty? The answer, in my judgment, is an emphatic “no”. In taking a child into care and instituting care proceedings, the local authority is acting as an organ of the state. To permit a local authority in such circumstances to consent to the deprivation of liberty of a child would (1) breach Article 5 of the Convention, which provides “no one should be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law”, (2) would not afford the “proper safeguards which will secure the legal justifications for the constraints under which they are made out”, and (3) would not meet the need for a periodic independent check on whether the arrangements made for them are in their best interests (per Lady Hale in Cheshire West at paragraphs 56 and 57)”.
139. No party has sought to argue before me that the local authority can give consent to T’s deprivation of liberty at X unit and there is no dispute between the parties that, in the event that I approve the care plan and make a care order, a declaration authorizing the deprivation of T’s liberty is required. In the absence of such a declaration, T’s continued placement at X unit would be unlawful and in breach of article 5 ECHR. As set out by Keehan J at §34 of Re AB “The local authority, as a public body is required by s.6 of the Human Rights Act 1998 not to act in a way which is incompatible with a Convention right”.

And that leaves, finally, the medication question

4. Where a child is prescribed medication and the parent objects to that medication, can the Local Authority use their powers under s33 of the Children Act 1989 to consent to it, or is an order of the Court required?

Although in this case there had been a lot of discussion about risperidone (an anti-psychotic medication) and melatonin (a drug which promotes sleep) the actual prescription by a GP/Psychiatrist had not yet happened. It was plain that mother objected to her son being given this medication and therefore the Court was asked to give a decision as to whether IF such medication were prescribed the LA could use its powers under a Care Order (section 33 Children Act 1989) to overrule mother’s objection or whether a Court would have to be asked to decide.

(So the Court isn’t DECIDING here whether T should be given the medication, just whether if doctors said he should take the medication and mum says no, can the LA consent to it or does there need to be a Court order?)

There isn’t a direct answer to this question in the law, or clear understanding of how far section 33 extends or what its limits are.

Recorder Howe QC answers the question by looking at two areas where the Courts have ruled that section 33 is not enough to overrule a parent and a Court order is needed instead.

One is vaccination, following MacDonald J in Re SL (Permission to Vaccinate) [2017] EWHC 125 (fam), it is not appropriate for the local authority to override M’s wishes by giving its consent under section 33(3) Children Act 1989

And the other is parent’s choice of names (our old friends Preacher and Cyanide https://suesspiciousminds.com/2016/04/15/preacher-and-cyanide/ )

In the case of C (Children) [2016] EWCA Civ 374,
http://www.bailii.org/ew/cases/EWCA/Civ/2016/374.html

178. “In my judgment notwithstanding that a local authority may have the statutory power under section 33(3)(b) CA 1989 to prevent the mother from calling the twins “Preacher” and “Cyanide”, the seriousness of the interference with the Article 8 rights of the mother consequent upon the local authority exercising that power, demands that the course of action it proposes be brought before and approved by the court”.

180. Having considered in some detail the authorities referred to above, this local authority does, in my judgment, require the authorization of the court for Risperidone and Melatonin to be administered to T. I find this for 3 main reasons:

(a) each drug, whilst commonly used with autistic children, has recognized and serious side effects;

(b) T’s impairments are such that I am satisfied that he would have more difficulty in expressing that he was suffering side effects, were they to arise;

(c) If the administration of vaccinations and the change of a child’s first name are such serious interferences with the article 8 rights of a parent, so as to require an order under the inherent jurisdiction of the High Court to override the will of a parent, however unreasonable that parent may appear to be, it would be a nonsense for the reasonable concerns of this mother not to be of sufficient gravity to justify similar protections.
181. I appreciate that my decision undermines the power the local authority thought it had available to it under section 33(3) CA 1989. During the hearing of submissions, I raised myself the proposition that the administration of medication over a period of time, that is not a one-off or a short course, such as is the case with vaccinations and, indeed is the case with a change of name decision, might need to be seen differently. Dosages of medications can change. Frequency of administration of the drug can require alteration and it is simply not practicable for alterations in drug regimes to be managed by the court. However, having set that particular hare running, I have reached the conclusion that the administration of these medications, and especially the risperidone, involves such an interference with the article 8 rights of M, that any decision as to whether administration is to be started must be made by the court. Whether it is then necessary for the court to remain involved once that initial decision has been made, is a matter upon which I will hear argument at the next hearing.

So there you have it – some reported cases don’t tackle any questions of wider import beyond the case in question, some deal with one or two, but this one deals with four – the last one being potentially very significant for cases where a Local Authority is caring for children who need medication.

Parents can consent to restriction of liberty for children under 18, Court of Appeal rules

This appeal overturns Keehan J’s decision that whilst a parent could consent to a foster care arrangement that involves a restriction of liberty for a child under 16 (which thus means that it does not require either Secure Accommodation or court authorisation), they cannot do so for a child aged 16-17 and 363 days.

Re D (A child) 2017

http://www.bailii.org/ew/cases/EWCA/Civ/2017/1695.html

The Court of Appeal considered things very carefully and in huge detail. I don’t have time for the detailed analysis that the case merits, but it is an important decision, so people need to know it. The Court of Appeal felt, looking at things closely, that there was no magic in the age 16 when dealing with young people who lack capacity.

84.This has an important corollary. Given that there is no longer any ‘magic’ in the age of 16, given the principle that ‘Gillick capacity’ is ‘child-specific’, the reality is that, in any particular context, one child may have ‘Gillick capacity’ at the age of 15, while another may not have acquired ‘Gillick capacity’ at the age of 16 and another may not have acquired ‘Gillick capacity’ even by the time he or she reaches the age of 18: cf, In Re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11, pages 24, 26.

128.In my judgment, in the context with which we are here concerned (see paragraphs 84-85 above), parental responsibility is, in principle, exercisable in relation to a 16- or 17-year old child who, for whatever reason, lacks ‘Gillick capacity’.

Consider a dentist, who is deciding whether to treat someone who is not an adult. If a 7 year old says “I don’t want you to take my teeth out” the dentist will of course look to the parent to say yes or no, and won’t take the child’s views as being final. If a 15 year old says that, the dentist may try to encourage and persuade, but can’t really just operate against the 15 year old’s will, and nor can they just take parental consent. The 16 year old with capacity has autonomy over their own body and mouth. BUT if the parents come with a 16 year old and explain that as a result of special needs, the young person lacks capacity, the dentist would probably be able to take the parental consent as being valid. The parents are exercising parental responsibility for a young person who does not have Gillick competence to make their own decisions (even though they are of an age where most young people would be)

I’m not sure that I agree with this conclusion, and I feel that it has some issues with Lord Kerr’s formulation in Cheshire West.

“77 The question whether one is restricted (as a matter of actuality) is determined by comparing the extent of your actual freedom with someone of your age and station whose freedom is not limited. Thus a teenager of the same age and familial background as MIG and MEG is the relevant comparator for them. If one compares their state with a person of similar age and full capacity it is clear that their liberty is in fact circumscribed. They may not be conscious, much less resentful, of the constraint but, objectively, limitations on their freedom are in place.

78 All children are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances. If MIG and MEG had the same freedom from constraint as would any child or young person of similar age, their liberty would not be restricted, whatever their level of disability. As a matter of objective fact, however, constraints beyond those which apply to young people of full ability are – and have to be – applied to them. There is therefore a restriction of liberty in their cases. Because the restriction of liberty is – and must remain – a constant feature of their lives, the restriction amounts to a deprivation of liberty.

79 Very young children, of course, because of their youth and dependence on others, have – an objectively ascertainable – curtailment of their liberty but this is a condition common to all children of tender age. There is no question, therefore, of suggesting that infant children are deprived of their liberty in the normal family setting. A comparator for a young child is not a fully matured adult, or even a partly mature adolescent. While they were very young, therefore, MIG and MEG’s liberty was not restricted. It is because they can – and must – now be compared to children of their own age and relative maturity who are free from disability and who have access (whether they have recourse to that or not) to a range of freedoms which MIG and MEG cannot have resort to that MIG and MEG are deprived of liberty.”

And later

157.The ECHR enshrines the rights of the citizen, but its principal purpose and function is the protection of rights by engaging the State. The Convention is not an academic exercise. Key questions in every case where the Convention is invoked are: on the facts, is there an obligation for the State to become involved? Are the domestic laws and procedures apt to engage the State when necessary, and to protect the citizen’s rights? But these are questions to be asked and answered of the domestic law, for our purposes the common law.

158.It should be no surprise that the common law has provided the answer here. Although it is not necessary for the decision in this case, I also agree with the President that the question whether there is “confinement” should be approached in the careful way analysed by Lord Kerr in Cheshire West, at paragraphs 77 to 79. A three year-old child must be restrained for her own safety if walking near a busy road, or playing near a bonfire. This restraint would be unlawful if exercised over an adult. But it is lawful if exercised by any adult looking after the child. In my view, there is no need for an elaborate analysis of delegated parental responsibility to explain this. In such circumstances, restraint to keep the child safe lawfully could (and normally should) be exercised by any nearby adult. The true analysis is that explained by Lord Kerr. For all present purposes, “confinement” means not simply “confining” a young child to a playpen or by closing a door, but something more: an interruption or curtailment of the freedom of action normally to be ascribed to a child of that age and understanding. In most of the myriad instances in life where children are restrained in one way or another – by being compelled unwillingly to go to school, go to bed at a given time and so forth – there can be no question of their being “confined” so as to fulfil the first limb of the test in Storck.

159.Where there is confinement in the sense I have indicated, so that there may be a need for the State to engage to prevent possible abuse, the questions then become whether parental rights (and duties) can justify the confinement, and whether the State may have an obligation, to be discharged by local authorities and perhaps by the courts, to intervene. Excessively cautious or strict parenting, leading, let us say, to a fourteen year-old who is prevented from ever leaving the house save to be transported to and from school by a parent, might be a case of “confinement”. Other more extreme examples clearly would do so. Then the issue of whether the confinement is justified may arise. It will be evident that such cases are highly fact-specific and that the State will accord great flexibility to parents in caring for their children. That flexibility must reflect the facts, including the “discretion” of the child.

It rather seems to me that the nuts and bolts of Cheshire West are that one compares whether the restrictions on a child are part and parcel of family life or above and beyond that, not by comparing X child with one of similar needs and circumstances but with a child of a similar age. And that means that it would NOT be reasonable for a foster parent to lock the bedroom door of a 17 year old or restrain them if they tried to leave the home, and it doesn’t become reasonable just because X happens to lack capacity and needs those restrictions to keep them safe.

The Court of Appeal have clearly spent hours and hours on this, and my gut feeling is just my gut feeling, so it would be utterly wrong of me to try to argue that the Court of Appeal are wrong here.

Re D is the law now. Re D is.

Re D is.

Re D is

Re D is

(And if you aren’t reading Tom King and Mitch Gerard’s “Mister Miracle”, can I urge you to do that in the strongest possible terms? It is a mark of how great they currently are that the only work to compare to it this year is the same creative team’s run on Batman. )

The Court of Appeal stress that if a Local Authority are relying on parental consent to authorise a restrictive regime in foster care, they can’t simply rely on generic section 20 consent to authorise this.

149.Finally (paras 126-128), Keehan J rejected the local authority’s contention that the parents’ consent to D being accommodated pursuant to section 20 of the Children Act 1989 was a valid consent to D’s confinement at the residential unit. He disagreed with Mostyn J’s analysis in Re RK (Minor: Deprivation of Liberty) [2010] COPLR Con Vol 1047. Furthermore, he said (para 128):

“the “consent” is to the child being accommodated. It cannot be inferred that that consent means that those with parental responsibility have consented to whatever placement the local authority considers, from time to time, appropriate.”
150.I agree with Keehan J that the mere fact that a child is being accommodated by a local authority pursuant to section 20 does not, of itself, constitute a parental consent for Nielsen purposes to the particular confinement in question. In the first place it needs to be borne in mind that parental consent is not, in law, an essential pre-requisite to a local authority’s use of section 20: see Williams and another v Hackney London Borough Council [2017] EWCA Civ 26, [2017] 3 WLR 59. Moreover, even where there is such consent, there remains the powerful point made by Keehan J: to what precisely have the parents consented? That is a matter of fact to be decided in light of all the circumstances of the particular case. Here, as we have seen, Keehan J, found (see paragraph 9 above) that his parents had agreed to D’s being placed at Placement B just as he had earlier found (paragraph 107 above) that they had previously agreed to his being placed at Hospital B. I can see no basis for challenging either of those findings of fact.

(I’m not at all sure now of the status of Keehan J’s previous assertion that whilst parents can consent to restriction of liberty in foster care under s20, they can’t do so under ICOs because the threshold has been found to be crossed. That wasn’t in the case that was appealed, and it has always seemed to me a rather arbitrary distinction. I can’t see that the Court of Appeal look at this, but it is a long judgment, I may have missed it.)

Re D is.

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.

 

 

Cheshire Cat, Cheshire Act

 

Following the Supreme Court decision in Cheshire West, which greatly expanded the definition of restriction of liberty to the point where the system has almost entirely broken down due to the huge increase in volume, the Law Commission have published an interim report on Deprivation of Liberty.

Unsurprisingly, they say that there’s no hot-fix available for the current mess we are in, and their recommendation is for Parliament to produce a brand new Act to put things right.

Given that Deprivation of Liberty was brought about as a solution for the Bournwood gap when the ECHR finally dealt with that case and told us that there was a truck-sized plot hole in our legislation about restricting the liberty of people who were not criminals and not mentally ill,  “for their own good”,  it probably did well to last as long as it did before crumbling like, well like, Cheshire cheese.

 

http://www.familylaw.co.uk/system/froala_assets/documents/799/law_commission_deprivation_of_liberty_dols_mental_capacity_interim_statement.pdf

 

1.4 We have concluded that legislative change is the only satisfactory solution to the problems we outline below. During the next phase, the Law Commission will
produce draft legislation and a final report. The process of developing draft legislation is likely to result in some changes of substance to the approach outlined here.
This statement should not be construed as necessarily representing our final position.
1.5 The final report and draft legislation will be published before the end of 2016. It will then be for the Government to decide how the recommendations will be taken
forward.
Why, Government, here is some convenient long grass

Why, Government, here is some convenient long grass

 

GO ON THEN!

GO ON THEN!

 

The Law Commission had a healthy response to its consultation, and this bit was, I think, telling

 

Finally, a significant number of consultees argued that any system which is based on Cheshire West
will be unsustainable. It was argued that the acid test defies common sense, the most frequently quoted examples being end-of-
life care andintensive care units. Most concerns related to the practical implications of Cheshire West .
Local authorities reported significant increases in the numbers of referrals locally (often above the tenfold national figure), widespread
non-compliance with time-scales for assessments and many “low-level” or “community” cases being left unassessed. Many queried why the
Law Commission was not seeking to legislate away the acid test.
Onto some detail
1.37 Nevertheless, it is our view that the new scheme must demonstrably reduce the administrative burden and associated costs of complying with the DoLS by
providing the maximum benefit for the minimum cost. With this in mind, we have therefore concluded that the new scheme should focus solely on
ensuring that those deprived of their liberty have appropriate and proportionate safeguards,and should not seek to go as widely as the protective care scheme.
1.38 We propose to recommend a more straightforward, streamlined and flexible scheme for authorising a deprivation of liberty. The responsibility for establishing
the case for a deprivation of liberty will be shifted onto the commissioning body (such as the NHS or local authority) that is arranging the relevant care or
treatment, and away from the care provider. This should provide greater clarity,since the body directly responsible for the proposed deprivation of liberty would
need to provide evidence to support its case. The required evidence would include a capacity assessment and objective medical evidence of
the need for a deprivation of liberty on account of the person’s mental health condition. The commissioning body would also be required to undertake certain
steps such as arranging for the provision of advocacy (or assistance from an appropriate person) and consulting with family members and others.
1.39 All those deprived of liberty would be eligible for safeguards to secure the protection of their rights under article 5 of the ECHR. For example, all those
deprived of their liberty (as well as others, such as family members and advocates) would have rights to seek reviews of their deprivation of liberty and
bring legal proceedings to challenge the deprivation of liberty. There will also be comprehensive rights to advocacy.
Sounds good, but the real test is going to be how possible it is going to be for a family member to challenge restrictive care arrangments and what help the State will provide them to do so. We know for example, that the Neary case showed up huge problems with the DoLs regime and had to be fought with tenacity by an exceptional human being to get the right outcome in the end. You could ask Mark Neary whether the protections that were in place and the mechanism for family members to be able to challenge were robust enough and simple to follow. I suspect I know what his answer would be.  It shouldn’t require that a vulnerable person needs someone as remarkable as Mark to stand up for them, not every vulnerable person has that luxury.
http://www.lag.org.uk/magazine/2014/07/the-court-of-protection-steven-neary’s-story.aspx
The Law Commission touch on the Neary case here, and suggest some additional safeguards
1.41 By way of amendments to the rest of the Mental Capacity Act, we will also seek to maintain, as much as possible, the article 8 ECHR protections that were
contained in the supportive care elements of the scheme, but in such a way as to minimise the demand upon services. These amendments will be aimed primarily
at ensuring that there is proper consideration, in advance of the decision being made, of the necessity of removing individuals from their own home and placing
them in institutional care in the name of their best interests.
The failures of public bodies in this regard have been evident in high-profile cases such as London Borough of Hillingdon v Neary and Essex County Council v RF
The amendments would also aim at giving greater priority to the person’s wishes and feelings when a best interests decision is being made, and qualifying the
immunity from legal action in respect of best interests decisions under section 5 of the Mental Capacity Act so as to provide additional procedural safeguards in
respect of certain key decisions by public authorities.
1.42 In addition we are considering whether a defined group of people should receive additional independent oversight of the deprivation of their liberty, which would be undertaken by an Approved Mental Capacity Professional. Owing to the vast number of people now considered to be deprived of their liberty
following Cheshire West, it would not be proportionate or affordable to provide such oversight to all those caught by article 5 of the ECHR. Whilst
we are still working to develop the precise criteria that would operate to identify this group, we envisage that this group would consist of those who are subject
to greater infringement of their rights, including, in particular, their rights to private and family life under article 8 of the ECHR.
And it wouldn’t be a civil service consultation without an omphaloskepsis exercise of deciding what it should be called
1.47 At consultation we provisionally proposed that the First-tier Tribunal should review cases under our new scheme, thereby replacing the role of the Court of
Protection. This proposal was supported by a significant number of consultees.
We were told that the advantages of a tribunal system included its accessibility, informality and speedy decision-making. But others pointed to the existing levels
of knowledge and expertise in the Court of Protection and the difficulties of demarcation or overlap with the remainder of the Mental Capacity Act if a tribunal
jurisdiction was introduced. We have not yet reached a final decision and will be considering our position further over the coming months.
1.48 Finally, perhaps the issue that provoked most debate at consultation was the nomenclature associated with the DoLS. Most consultees felt that the term
“deprivation of liberty safeguards” was at best unhelpful and, at worst, meant that people were being denied access to legal rights. Some consultees were similarly
critical of our proposed new terminology, including the label “protective care”. A number of consultees suggested the name “liberty safeguards”, whilst the next
favourite was “capacity safeguards”. However, there was no consensus on the terminology that should be adopted. Therefore we invite further
views (by 23 June 2016) on the name that should be given to the new scheme.
Please send your suggestions to Olivia.Bird@lawcommission.gsi.gov.uk.
There are some legitimate issues here about how naming something creates a set of preconceptions about what the scheme is for and whether it is intended to be a rights-based or a patrician cotton wool scheme, or where on the scale it falls, but this sort of thing always does remind me of Douglas Adams, writing about a bunch of middle-managers and marketing execs who fled their own planet and find themselves living on Earth in the stone age, trying to rebuild society from the ground up.
Well, you’re obviously being totally naive of course“, said the girl, “When you’ve been in marketing as long as I have, you’ll know that before any new product can be developed it has to be properly researched. We’ve got to find out what people want from fire, how they relate to it, what sort of image it has for them.”
The crowd were tense. They were expecting something wonderful from Ford.
Stick it up your nose,” he said.
“Which is precisely the sort of thing we need to know,” insisted the girl, “Do people want fire that can be fitted nasally?
“And the wheel,” said the Captain, “What about this wheel thingy? It sounds a terribly interesting project.”
“Ah,” said the marketing girl, “Well, we’re having a little difficulty there.”
“Difficulty?” exclaimed Ford. “Difficulty? What do you mean, difficulty? It’s the single simplest machine in the entire Universe!
The marketing girl soured him with a look.
“Alright, Mr. Wiseguy,” she said, “if you’re so clever, you tell us what colour it should be.

Bickering (or the ever decreasing circle of life continues)

[Grateful to @dilettantevoice for highlighting this case to me on Twitter]

 

You may recall the Court of Appeal taking Mostyn J to task for taking them to task for taking him to task.

https://suesspiciousminds.com/2015/10/22/ever-decreasing-circles-court-of-appeal-take-mostyn-j-to-task-for-taking-them-to-task-for-taking-him-to-task/

 

Well, none of you thought that it would end there, did you?

Re CD 2015

http://www.bailii.org/ew/cases/EWCOP/2015/74.html

An exceptionally tricky case, and one absolutely can’t underestimate just how difficult a job High Court Judges have to do. This one involved a woman with very severe mental health problems, who after she stabbed herself in the stomach, the hospital found that she had tumours in her stomach that needed to be removed. Although the woman was detained under the Mental Health Act, the power to perform treatment against a person’s will under that Act is really confined to treatment for their mental health, and this was a physical treatment. As the woman would be under anesthetic at the time, the High Court has previously ruled that this would be a deprivation of liberty.

A NHS Trust v A [2013] EWHC 2442(Fam) [2014] Fam 161

Additionally, there’s the complication of some wording in the Mental Capacity Act which suggests that a deprivation of liberty can only be dealt with under the Mental Health Act if the person is detained under the Mental Health Act.

 

 

  • he confusion surrounding the main test is mirrored by the confusion that the interface with the MHA gives rise to. I recently have had to grapple with this in Re A [2015] EWCOP 71. Mr Justice Baker has given a characteristically exhaustive judgment on the subject in A NHS Trust v A [2013] EWHC 2442(Fam) [2014] Fam 161 as has Judge Parry in A Local Health Board v AB [2015] EWCOP 31. The confusion arises from the highly ambiguous and double negative laden terms of para 3(2) of Schedule 1A to the MCA 2005. This states:

 

“P is ineligible if the authorised course of action is not in accordance with a requirement which the relevant regime imposes”

 

  • In this case CD is P. “Ineligible” means ineligible to be deprived of liberty by the 2005 Act. The “authorised course of action” is the surgical removal of the ovarian masses. The “relevant regime” is the MHA regime whereby CD is compulsorily detained in a mental hospital. So, for our purposes, para 3(2) reads:

 

“CD is ineligible to be deprived of liberty by the 2005 Act if the surgical removal of the ovarian masses is not in accordance with a requirement which the MHA regime whereby CD is compulsorily detained in a mental hospital imposes.”

 

  • Mr Auburn rightly says that there are two ways of reading this which give rise to directly contradictory results. The first is in a pitilessly literal way, as argued by Mr Matthewson. It is this: if the surgical removal of the ovarian masses is not in accordance with a requirement of the MHA regime whereby CD is compulsorily detained in a mental hospital then CD is ineligible to be deprived of liberty by the 2005 Act. It isn’t, he says, so she is ineligible and so the necessary orders have to be made under the inherent jurisdiction of the High Court. The problem with this interpretation is that it gives rise to a result directly contrary to the intention of the statute and to the express terms of the Code of Practice, as I explained in Re A at paras 10 – 14 (accepting the submissions not only of Ms Butler-Cole but also of Ms Dolan, on that occasion instructed by the Official Solicitor).
  • The alternative interpretation, which I adopted in Re A, and which I maintain to be correct is this: if the MHA regime whereby CD is compulsorily detained in a mental hospital imposes a specific requirement for dealing with the problem of the ovarian masses then CD is ineligible to be deprived of her liberty under the 2005 Act for the purposes of dealing with the problem by a different procedure under that Act. It doesn’t (obviously) so she isn’t ineligible. As I said in Re A this is plainly what the scheme of section 16A and Schedule 1A intends and the matter is conclusively confirmed by paras 4.50 and 4.51 of the Code of Practice. In my judgment it would be ridiculous if the whole case had to leave the Court of Protection with its statutory powers and enter the High Court exercising common law inherent powers by virtue of a pedantically literal reading of para 3(2).
  • The orders which I make will be made by me sitting in the Court of Protection under powers granted by Parliament in the MCA.

 

 

Mostyn J is utterly and completely right here, the wording of this piece of the legislation is ghastly (double-negatives are really not something that you want in a piece of legislation anywhere, particularly about something so serious) and it has left a serious lacuna in the law.  And you know how High Court Judges tend to solve lacunas in the law – that’s right, the ‘theoreticaly limitless powers of the inherent jurisdiction’  [Though not here, Mostyn eschewing Baker J’s inherent jurisdiction solution to say instead that the power must really remain under the MCA]

 

A very tricky case, and almost all of what Mostyn J says in the judgment is careful, apposite and fair.

Unfortunately, this passage decides to resurrect the quarrel with both the Supreme Court in Cheshire West, and the Court of Appeal

 

In KW & Ors v Rochdale Metropolitan Borough Council [2015] EWCA Civ 1054 at para 32 the Court of Appeal stated “even if Cheshire West is wrong, there is nothing confusing about it”. It may seem that way from the lofty heights of the Court of Appeal; and of course the literal words of the Supreme Court’s test are perfectly easy to understand. But for we hoplites who have to administer it at first instance the scope and ramifications of the test are, with respect, extremely confusing. As Mr Matthewson, instructed by the Official Solicitor for CD, rightly stated “anyone who deals with this day by day knows this is confusing”. What of the situation where, as here, the protected person actively and fervently expresses the wish to undergo the procedure that is said to amount to a deprivation of liberty? What of the situation, as was the case in Bournemouth Borough Council v PS & Anor [2015] EWCOP 39, where the protected person shows no inclination whatsoever to leave the home where he is cared for round the clock? What of the situation where the protected person is seriously disabled, perhaps bedridden, perhaps in a coma, and is thus physically incapable of exercising the freedom to leave? The answers I received from the Bar when discussing these scenarios belie the blithe suggestion that “there is nothing confusing” about the test. I do not accept the criticism that my approach to these cases is “distorted” by my “passionate” and “tenacious” belief that Cheshire West is wrong. Rather, it is a loyal approach which tries to apply literally and purposively the Supreme Court’s test while at the same time pointing out how confusing and curious it is, to say nothing of the cost it causes to the public purse

 

 

I think that there IS an argument about whether Baker J’s decision in Re A (that the surgical procedure amounts to a deprivation of liberty) actually meets the test in Cheshire West – I think that one can argue it either way and a strong case can be made for if a Court has declared that the procedure is in P’s best interests despite a lack of consent that the patient has had sufficient safeguards and an additional authorisation of a Deprivation of Liberty isn’t necessary.

It is also quite right that we now have a definition of deprivation of liberty which is utterly unworkable in practice due to resource implications (as we have seen, if every LA issued every deprivation of liberty application that they need to on the wording of Cheshire West, the Court would spend the next five years dealing with this years cases, and so on), and that the MCA on this particular issue is badly in need of reform. Such reform not likely to hit us until 2017 at best.

 

But the Rule of Law is the Rule of Law.  Whatever one might think of the Cheshire West test (and personal opinions and critiques of it are perfectly valid – it wasn’t a unanimous decision on all issues in the Supreme Court itself), the test has been set and it is now to be applied.  In the first of the two examples, it is really plain that the absence of resistance from P if they lack capacity is neither here nor there, that’s not a legitimate part of the test. After all, that was the very issue in Bournewood that led to the development of the MCA in  the first place. The latter question of whether you assess whether a person is being deprived of their liberty by looking at their physical characteristics has been squashed by the Supreme Court.

[There IS , I think an argument about whether someone who is physically prevented temporarily from getting up to leave – under anaesthetic for example, or that they have a broken leg that will heal, meets the Cheshire West test. But that’s for a Judge to determine when they are faced with an application of the test to those particular facts]

 

It is a fine line between a Judge being free to criticise the law when it is resulting in unfairness and staying out of politics and just applying the law as it is to the facts of the case.

I’m aware that I am being hypocritical here – because I do think that Judges can and should speak out when the law at present is unfair and makes unreasonable outcomes when it is applied.  Because when Mostyn J and others have attacked LASPO, I’ve supported and applauded them. That is a law whose application is currently unfair (particularly the Legal Aid Agency’s approach to granting exceptional funding where human rights require it, but ignoring when Judges tell them that this particular case would breach a person’s human rights if funding were not given).  I also disagree with LASPO itself, but I’m stuck with it unless and until Parliament changes it. So, am I just as unreasonable as Mostyn J considers the Court of Appeal to be – given that I’m happy for him to critique and attack the law when I agree with him, but criticise him when I think the law is right?

Damn, I’ve painted myself into a corner here.

 

Perhaps what we need is a case with the citation Mostyn J v Court of Appeal  (to be decided in the Supreme Court)

Ever decreasing circles – Court of Appeal take Mostyn J to task for taking them to task for taking him to task…

 

Readers of the blog may be familiar with Mostyn J’s continuing battle to have the Supreme Court change their mind about the deprivation of liberty test set down in Cheshire West, and failing that to simply disagree with their decision at every opportunity.

In this particular case, Rochdale had asked Mostyn J to authorise a care plan for a person lacking capacity that clearly amounted, on the Cheshire West test to a deprivation of liberty.

At the first hearing, Mostyn J told everyone that Cheshire West was nonsense (politely and judicially and intellectually, but that was the gist) and that the person was not being deprived of their liberty and thus there was no need to authorise it.

The case was appealed, and rather unusually, by the time that it got to the Court of Appeal EVERYONE agreed that the Mostyn J judgment should be overturned and that the person was being deprived of their liberty. The Court of Appeal approved a consent order to that effect but did not give a judgment explaining why Mostyn J had been wrong  (perhaps wrongly thinking that where everyone agreed the Judge was wrong and that he had gone against a clear Supreme Court decision with which he did not agree but was not able to distinguish the instant case from, that it was somewhat plain)

 

 

It went back to Mostyn J to authorise or not, the deprivation of liberty. However, he declined and took everyone, including the Court of Appeal to task and said that a consent order without a judgment was not binding on him. And thus did not reach the point of authorising the deprivation, but instead set down a hearing to be conducted by himself as to whether there was a deprivation of liberty at all.

Incredibly bravely (but rightly), the parties appealed THAT, and the Court of Appeal determined it.

[Previous blog on Round 3 of this peculiar litigation is here   https://suesspiciousminds.com/2015/03/16/mostyn-powers/  ]

 

So, by way of catch-up here, in this one case, Mostyn J disagreed with the Supreme Court, then when the Court of Appeal disagreed with him, he disagreed with them. And now the Court of Appeal disagree with him again.

In the midst of all of this, are some real people with real problems to resolve, and a lot of taxpayers money being spent.

KW and Others v Rochdale MBC 2015

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/1054.html

 

The Court of Appeal pull no punches whatsoever. In fact I understand that this was very much what it looked like when the Master of the Rolls removed his gloves after the judgment

 

 

The Master of the Rolls does not have to go through the metal detectors en route to the Court room

The Master of the Rolls does not have to go through the metal detectors en route to the Court room

 

But first, the technical part of the appeal – if the Court of Appeal approve a consent order overturning the decision of the original Judge but don’t give a judgment, is the case actually overturned? (I understand that this is actually one of the lesser known and unpopular Zen koans)

 

The grounds of appeal from the second judgment

 

  • The principal ground of appeal is that the judge misinterpreted the consent order when he said that the Court of Appeal had not decided that KW was being deprived of her liberty.
  • We accept that (i) nowhere does the order explicitly state that there was a deprivation of liberty; and (ii) the use in para 2 of the order of the words “to the extent that the restrictions in place pursuant to the Care Plan are a deprivation of KW’s liberty, such liberty is hereby authorised” might suggest that the court was not deciding that the restrictions were in fact a deprivation of liberty. But read in their context, that is clearly not the correct interpretation for at least two reasons. First, para 2 must be read in the light of para 1, which governs the whole order. Para 1 states that the appeal is allowed. The remaining paragraphs set out the court’s directions consequential upon the allowing of the appeal. When read together with section 6 of the notice of appeal, the order that the appeal was allowed necessarily involved the court deciding that KW’s care package does involve a deprivation of liberty. The words “to the extent that” etc are perhaps unfortunate, but they cannot detract from what allowing the appeal necessarily entailed. These words were derived from para 11 of the Model Re X Order which had been published on the Court of Protection website and which practitioners had been encouraged to use. We were told by counsel that this form of words is not universally used. We understand that the form of words more often used is along the lines of: “P is deprived of his or her liberty as a result of arrangements in the Care Plan and these are lawful”. This is undoubtedly preferable to the earlier version.
  • Secondly, para 2 must also be read in the light of the consequential orders set out at paras 3 to 5 of the consent order. The reviews there provided for are clearly reviews of the kind contemplated where there is a deprivation of liberty.
  • It follows that the judge was wrong to hold that it had not been decided by this court that KW was being detained by the state within the terms of article 5. The appeal must, therefore, be allowed.

 

Was the consent order made ultra vires?

 

  • Was the judge right to say that the Court of Appeal took “a procedurally impermissible route” so that its decision was “ultra vires”? It is important that we comment on this statement in view of the general importance of the point and the fact that the judge’s comments have apparently given rise to considerable degree of public interest. We acknowledge that, despite these comments, the judge did say that the rule of law depends on first instance judges “complying scrupulously with decisions and orders from appellate courts”. And, as we have said, that is what he purported to do.
  • An order of any court is binding until it is set aside or varied. This is consistent with principles of finality and certainty which are necessary for the administration of justice: R (on the application of Lunn) v Governor of Moorland Prison [2006] EWCA Civ 700, [2006] 1 WLR 2870, at [22]; Serious Organised Crime Agency v O’Docherty (also known as Mark Eric Gibbons) and another [2013] EWCA Civ 518 at [69]. Such an order would still be binding even if there were doubt as to the court’s jurisdiction to make the order: M v Home Office [1993] UKHL 5; [1994] 1 AC 377 at 423; Isaacs v Robertson [1985] AC 97 at 101-103. It is futile and, in our view, inappropriate for a judge, who is called upon to give effect to an order of a higher court which is binding on him, to seek to undermine that order by complaining that it was ultra vires or wrong for any other reason.
  • In any event, the judge was wrong to say that the consent order was ultra vires because it was made by a procedurally impermissible route.
  • The issue turns on the true construction of para 6.4 of PD 52A. Rule 52.11 provides that the appeal court will allow an appeal where the decision of the lower court (a) was wrong or (b) was unjust because of a serious procedural or other irregularity in the proceedings of the lower court. It is concerned with the “hearing of appeals” which is done by way of a review or, in certain circumstances, a re-hearing. What is envisaged by rule 52.11 is a hearing which leads to a decision on the merits. To use the language of the first sentence of para 6.4 of the practice direction, this is what an appellate court normally does when allowing an appeal.
  • The use of the word “normally” in this sentence presages a departure from rule 52.11 in specified circumstances. The word “normally” followed by the use of the word “however” in the following sentence makes it clear that what follows specifies the circumstances in which the court may depart from the norm. The second sentence states that the court may set aside or vary the order of the lower court without determining the merits of the appeal, but only if (i) the parties consent and (ii) the court is satisfied that there are good and sufficient reasons for taking this course. That such a decision will be made on paper is clear from the heading to para 6.4 and the words of the third sentence. It is true that the second sentence speaks of setting aside or varying the order under appeal, whereas the first sentence (faithful to rule 52.11) speaks of allowing an appeal. But we do not consider that there is any significance in this difference of language. Rule 52.10 provides inter alia that the appeal court has power to “(2)(a) affirm, set aside or vary any order or judgment made or given by the lower court”. These words are picked up precisely in para 6.4 which sets out the powers that the appeal court has when allowing an appeal.
  • The appeal court, therefore, has a discretion to allow an appeal by consent on the papers without determining the merits at a hearing if it is satisfied that there are good and sufficient reasons for doing so. What are good and sufficient reasons? The answer will depend on the circumstances of the case, but we think that it would be helpful to provide some guidance. If the appeal court is satisfied that (i) the parties’ consent to the allowing of the appeal is based on apparently competent legal advice, and (ii) the parties advance plausible reasons to show that the decision of the lower court was wrong, it is likely to make an order allowing the appeal on the papers and without determining the merits. In such circumstances, it would involve unnecessary cost and delay to require the parties to attend a hearing to persuade the appeal court definitively on the point.
  • At para 14 of his judgment, the judge said that, where a merits based decision has been reached at first instance which all parties agree should be set aside on appeal, para 6.4 requires there to be a hearing and a judgment. He added: “The judge whose decision is being impugned is surely entitled to no less, and there is a plain need to expose error so that later legal confusion does not arise”. We disagree. Para 6.4 does not require a decision on the merits in every case where there has been a decision on the merits in the lower court. There is no reason to restrict in this way the wide discretion conferred by para 6.4 to allow an appeal by consent without a hearing followed by a decision on the merits. The words “good and sufficient reasons” are very wide. Further, we reject the notion that the judge whose decision is under appeal has any entitlement to a decision on the merits. In deciding whether to make a consent order without a decision on the merits, the appeal court is only concerned with the interests of the parties and the public interest. The interests of the judge are irrelevant.
  • We accept, however, that there will be cases where it may be in the interest of the parties or the public interest for the court to make a decision on the merits after a hearing even where the parties agree that the appeal should be allowed. Mostyn J referred to cases in the field of family law. For example, in Bokor-Ingram v Bokor-Ingram [2009] EWCA Civ 27, [2009] 2 FLR 922, the parties by consent asked the court to allow an appeal, set aside the order below and make a revised order. Thorpe LJ said:

 

“5. A short disposal might have followed but for our concerns that the judgment below had already been reported …..and was causing, or was likely to cause, difficulty for specialist practitioners and judges in this field of ancillary relief.

6. Accordingly, we decided to state shortly why we had reached a preliminary conclusion that the appeal, had it not been compromised, would in any event have been allowed.”

 

  • The fact that the decision of the lower court in that case was causing difficulty led the appellate court to conclude that there were not “good and sufficient reasons” for departing from the normal procedure of conducting a hearing and giving a decision on the merits.
  • An example from a different area of law is Halliburton Energy Services Inc v Smith International (North Sea) Ltd [2006] [EWCA] Civ 185. The lower court had held that a certain patent was invalid. Following the issue of appeal proceedings, the case was settled. The Court of Appeal was asked to make a consent order for the restoration of the patent to the register without deciding the merits of the appeal. The court decided that it had to hear the merits on the grounds that, for a patent to be restored to the register, what was needed was a decision reversing the order for revocation and showing that the previous decision was wrong. Here too (but for a very different reason), the appellate court considered that a decision on the merits was needed.

 

 

 

But you aren’t here for the technicalities. You want to see what happened with that boxing glove and the horseshoes.

 

 

  • Mostyn J’s first judgment did not raise any issue of law. It is true that his criticism of Cheshire West (what he describes in para 20 of the second judgment as his “jurisprudential analysis”) raised a question of law. But this question has been settled by the Supreme Court relatively recently. The judge’s analysis was, and could be, of no legal effect. It was irrelevant. Indeed, he purported to apply Cheshire West to the facts of the case. The basis of the appeal was that he had failed to apply Cheshire West to the facts properly. The public interest in the first judgment has focused on his criticisms of Cheshire West. Unlike Bokor-Ingram, the decision of the lower court in the present case should have caused no difficulty for practitioners or judges in the field. It was a decision on the facts which, with benefit of the advice of counsel and solicitors, the parties agreed was wrong. The Court of Appeal must have taken the view that the parties had advanced plausible reasons for contending that the judge’s decision was wrong, so that there were good and sufficient reasons for allowing the appeal without deciding the merits. In our view, it was clearly right to do so.
  • This litigation has an unfortunate history. The judge has twice made decisions which have been the subject of an appeal to this court. On both occasions, the parties have agreed that the appeal must be allowed. This has led to considerable unnecessary costs to the public purse and unnecessary use of court time. We regret to say that it is the judge’s tenacious adherence to his jurisprudential analysis leading to his conclusion that Cheshire West was wrongly decided that has been at the root of this. He says at para 26 of the second judgment that “the law is now in a state of serious confusion”. Even if Cheshire West is wrong, there is nothing confusing about it.
  • In our view, the judge’s passionate view that the legal analysis of the majority in Cheshire West is wrong is in danger of distorting his approach to these cases. In the light of the unfortunate history, we are of the opinion that the review should be conducted by a different judge, who need not be a high court judge,
  • For the reasons that we have given, this appeal is allowed.