The Supreme Court decision in Cheshire West and Chester Council v P (2014) UKSC 19, (2014) MHLO 16 redefined the test to be applied when deciding whether or not a person (who lacks capacity to make decisions about their own care arrangements), is being deprived of their liberty. As a result of that decision, local authorities identified significant numbers of individuals who, being under the continuous supervision and control of others, and not being free to leave their residence, were being deprived of their liberty without any lawful authority. Concern mounted regarding the cost to the public purse of rectifying this situation, and securing a Court of Protection order authorising the deprivation of liberty in each case, on the basis that it was in the person’s best interests. One local authority calculated their additional annual costs in implementing the judgment at over £1.2 million.

In a case that followed, Re X and others (Deprivation of Liberty) [2014] EWCOP 25, the President of the Court of Protection devised a streamlined process to seek to enable the court to deal with these cases in a timely, just, and fair way, compatible with the European Convention on Human Rights. The President did not specify the precise nature of the individual’s (“P”) role in the proceedings, or what form of representation (legal or otherwise) P should have. Instead these issues fell to be considered in greater detail by an ad hoc Committee tasked with reviewing the Court of Protection Rules.

The resulting Court of Protection (Amendment) Rules 2015 were laid before Parliament on 9th March. A new Rule 3A has been included, providing that in every case the Court must consider P’s role and make one or more of the following directions, specifically relating to P’s participation: 

  • P should be joined as a party;
  • P’s participation should be secured by an accredited legal representative;
  • P’s participation should be secured by the appointment of a representative whose primary function is to give P a ‘voice’, ensuring P’s wishes and feelings are properly conveyed and taken into account;
  • P should have opportunity to address the judge (whether directly or indirectly); or
  • P’s participation and interests can properly be secured without the need for any of the above (or any other) directions.

A problematic issue can often be identifying a litigation friend, willing and able to act on behalf of P, where P is made a party in these proceedings. Among the provisions within the new rules is an intriguing Rule 3A, which envisages the possibility of an accredited legal representative being appointed to represent P, whether or not P is a party. This innovation parallels provision in the Mental Health Tribunals, where legal representation is secured from a Law Society panel of approved representatives, experienced in representing often vulnerable individuals detained under the mental health legislation. Although such a panel is not as yet in existence for Court of Protection cases, its formation would ensure a ready pool of experienced advocates nationwide, who can be called upon at short notice to represent P, particularly in the more straightforward cases, and in situations where no-one has come forward to act as litigation friend for P.

The Law Society has now launched a survey to canvass the appetite among Court of Protection practitioners for the creation of a panel of accredited representatives, focused on the work in the health and welfare jurisdiction of the Court. This survey can be accessed here.

It is fair and reasonable to ensure that an individual who lacks the capacity to make their own decisions about their care and treatment, and more specifically where they must live to ensure they receive that support, has the same rights to access to justice as anyone else. It is suggested that this client group are amongst the most vulnerable in our society, and so deserve access to quality representation from experienced practitioners. If you find yourself in agreement with this premise, you may want to follow the link and share your views on the matter with the Law Society.

For more information

Contact Sheree Green