These 4 test cases involving deprivation of liberty outside a hospital or care home, were stayed in 2016 (see JM & Ors Re Mental Capacity Act 2005  EWCOP 15) when Charles J declared that proceeding without the Patient being represented was unlawful. In the present judgment, he reviews the current situation and rules that the stay should be lifted on appointment of a Court of Protection General Visitor who would prepare a s49 report if a Rule 1.2 Representative could not be found.
The figures make for interesting reading:
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. Approximately 330 cases were stayed pursuant to Re JM.
A lengthy exegesis of what can only be described as the row between the judiciary and the MOJ/Secretary of State as to who is financially responsible for the provision of Rule 3A (now 1.2) Representatives in COP cases.
This decision comes after Charles J’s previous decision in Re JM where a considerable number of cases have been stayed pending the timetabling for skeleton arguments to be filed on this issue. It is plain that the judge is less than impressed as to the tortuous nature of the discussion which looks more akin to a tennis match than constructive dialogue, although at one point he seemed to be delivering a very fast ball (excuse the mixed metaphors).
The upshot is that the preferred representative will be a family member – not only because that member is likely to know more about the wishes of P than a stranger, albeit professionally qualified for the role, but also it will be inexpensive for the state – i.e. free, as opposed to the identification of who will undertake that role in their absence. The MOJ/Secretary of State was proposing using the directions under section 49 which gives the court the ability to call for reports prepared by the local authority, the local authority complaining (rightly, one may think) as to: 1) the availability of people to undertake this role (given the paucity of best interests assessors for DOLs - another issue still to be addressed); 2) the resultant burden on their already over stretched resources (for that read money); and 3) whether that burden should fall on central government. As Charles J laments in his judgement – clearly after hearing extensive written and oral argument - at paragraph 38:
General comment on the evidence and submissions
'38. Disappointingly, nothing has effectively changed in respect of the practical availability of professional Rule [1.2] representatives and the respective stances of the Secretary of State and applicant local authorities.'
The following paragraphs indicate Charles J’s view from paragraph 78 onwards:
'78. Preliminary observation. A presumptive approach based on a sequential list of preferred options runs counter to the person and circumstances centred best interest approach that the COP should take. This needs to be remembered but does not mean that a sequential approach is not informative. Rather it means that it should not be determinative or given inappropriate weight.
79. The first choice on which they agree is the option that has least impact on their respective budgets. I agree that generally it is likely to be the best choice because of the advantages it gives in respect of review on the ground, and its recognition of the benefits conferred on P by the involvement of a caring family member or friend in this role and more generally.
80. The reality of the dispute on the second choice is that it is based on the budgetary battle between local and central government and so the practical availability of this resource by reference to the public funds available and the respective duties of local authorities and the Secretary of State.
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.
Should the Crown be or remain as a Respondent?
89. Although its joinder has not had the desired effect of acting as a catalyst for constructive discussions and proposals that properly address the problems, the evidence indicates that without it the present proposal relating to visitors may well not have been made and that, if the Crown is no longer joined, the prospect of there being a constructive consideration of the problems will reduce.
90. A reason to continue the joinder would be to enable the Crown to challenge an assertion that a professional Rule 3A representative was not available. But this has not been advanced and the Crown could ask to be joined to advance it.
91. In cases where a visitor is appointed (or some other available procedure is adopted to enable an application or review to proceed) there is no need to, or purpose for joining, or continuing the joinder of, the Crown. But, as soon as any such practically available process is no longer available I consider that, for the reasons given in JM and earlier in this judgment the COP should join the Crown to and stay such applications and reviews. I have reflected this conclusion in the orders I have made and the draft set out in Schedule 2' (which provides for an order lifting the stay and for a section 49 report).
Read the full text of the judgment on Bailii