MOD & Ors (Deprivation of Liberty) [2015] EWCOP 47

This case concerns case management hearings in relation to nine unrelated cases. Each case relates to applications for deprivation of liberty of respective Patients (‘P’), made under the Re X procedure (X v Ors (Deprivation of Liberty) [2014] EWCOP 25, 7th August 2014, and X v Ors (Deprivation of Liberty) (Number 2) [2014] EWCOP 37, 16th October 2014) in the light of the Court of Appeal’s comments discrediting the Re X procedure ([2015] EWCA Civ 599).

The main issue was regarding making P a party and appointing a suitable litigation friend.

The Facts
ML is 87 years old, suffering from dementia and residing in a rehabilitation unit which she is expected to leave in 3 months.  Her son lives in the Dominican Republic and wishes for her to live there.

 The remaining patients are aged between 19-50 years all of whom have autism and serious learning difficulties.

In every case all involved, including family, are supportive of the placements and restrictions on the patients’ liberty.

The Official Solicitor (‘OS’) was invited to act on behalf of the patients but declined as there was simply limited resources due to the increase of applications in June 2015 (see paragraphs 21 and 22).

The Law
The court stipulates the difference between Schedule 1A of the Mental Capacity Act 2005 (‘the Act’) (authorisations of a patient’s deprivation of liberty within a hospital or care home) and section 16(2)(a) (authorisations by the court for deprivation outside a hospital or care home). It refers to the new PD 10AA following on from Re X.

The court referred to the recent Court of Appeal decisions following an appeal from Re X (see Re X (Court of Protection Practice) [2015] EWCA Civ 599).  The Court of Appeal determined that it did not have jurisdiction to entertain the appeal but stated had it done so they would make P a party to proceedings. The court was urged to treat the decision as obiter and not binding.

If the patient is made a party then he or she must have a litigation friend (Rule 3A(4).

Decision
The Judge found that ML was not suitable for the Re X procedure and would need determination at a hearing.

In the case of VS circumstances had changed but the filing of further evidence may have made the case suitable for a Re X procedure.

The remaining cases would have been suitable for the Re X procedure as the family supported the application.

The Judge transferred the case to the Vice President of the Court of Protection to decide whether:

1. P must be joined as a party involving cases of deprivation of liberty;
   
2. Whether it is sufficient to appoint a rule 3A representative;
   
3. If P must be joined, in the absence of any suitable person to become a litigation friend, what happens when the OS declines to act;
   
4. Can a family member act as litigation friend where they have an interest in the outcome; and
   
5. Should other cases raising similar issues be stayed pending determination of the questions above?

The Judge invited the Vice President to consider staying the other cases presently listed for hearing; and whether there should be an automatic stay on future cases that are issued.

The court did not discharge the OS and ordered him to file a statement requiring further explanation of his reasons to decline to act in cases of deprivation of liberty (see paragraph 68).

The court ordered the parties, save MOD, to address what steps have been taken to find a litigation friend (see paragraph 70).

The court declined to authorise the deprivation of liberty on an interim basis. 

Discussion
This case highlights the increase in applications following on from the Court of Appeal’s decision.

It also raises the resource difficulties in appointing a litigation friend.  The court refers to the case of Re UF [2013] EWHC 4289 (COP) and JJ v A Local Authority [2015] EWCOP 5 on the subject of family involvement: a litigation friend must act fairly and competently, and have no adverse interest to P (Rule 140). There may be, in some circumstances, an argument for the family member may have an adverse interest to the P.

The court made observations that in essence there may be very little difference between an appointment of a rule 3A representative and P being made a party and represented by a litigation friend.

The increase of these applications since Cheshire West has caused resource issues, not only with the court, but local authorities and the OS.

We must await the Vice President’s decision.

Read the full text of the judgment on Bailii