The Facts
P is a 34 year old man who was born on 2nd November 1980. P has autism, ataxic cerebral palsy, hearing and visual impairments and a learning disability. Proceedings were issued by NYCC on 7th September 2011.

There was no dispute between the parties that P lacked capacity to conduct proceedings and make decisions about his tenancy, where he was to live and his care needs. There was also no dispute that P was being deprived of his liberty.

P had been in his current placement, a ground floor flat, since 2006. P’s care package was jointly funded with 75% of costs being met by the Clinical Commissioning Group (‘CCG’) and the balance by NYCC. It was not until August 2013 that NYCC accepted that it was responsible for meeting P’s accommodation needs.

P’s flat is very small with no outside space. P cannot stand independently and the flat is too small to accommodate the wheelchair; therefore P moves by pulling himself along the floor and up to his bed and up on to chairs. As a result of pulling himself around like this P has sustained painful ‘bursitis’ in both knees and he also has ‘calluses’ to his knees and ankles. If P was not taken out he was confined to his flat.

The court commissioned several experts and the issue that remained unresolved was the issue as to P’s accommodation.

The court visited P at his flat.

Arguments for determination
The Official Solicitor (‘OS’) on behalf of P argued that P’s unsoundness of mind did not warrant the restrictiveness of his current care; and it was in P’s best interests to move to an alternative placement as soon as possible. The OS pointed out that it was only when the court became involved and instructed experts in the case that P’s care regime became less restrictive and there was a reduction in P’s challenging behaviour.

NYCC accepted that P was being deprived of his liberty but that the current accommodation is the only available option and another outcome cannot be achieved in a less restrictive way. NYCC stated that the court does not have jurisdiction to require it to find an alternative property that would not ordinarily be available to P. NYCC sought a final declaration that P’s deprivation of liberty was lawful. 

The CCG supported NYCC. 

The Law
At paragraph 13 of District Judge Glentworth’s judgment he referred to Article 5; sections 4A and 16(2) of the Mental Capacity Act 2005 (‘the Act’) and the decision in Re X [2014] EWCOP 25 at paragraph 14 confirming the requirements set out in Winterwerp v Netherlands (1979) 2 EHRR 387:
    
    ‘(i) that there must be medical evidence establishing unsoundness of mind;
    (ii) of a kind which warrants the proposed measures; and
    (iii) which is persisting at the time when decision is taken.’
    
The court also considered the Court of Appeal’s judgment in Re MN (Adult) [2015] EWCA Civ 411 whereby it dismissed the appeal against a judgment of Eleanor King J who, amongst other things, stated that the court can only make decisions on behalf of the patient that he would be able to make if he had capacity. The court can only make decisions from the options available to it.

Decision
The court accepted the position of the OS and at paragraph 28 stated:

"The Official Solicitor makes the point that the reference in Re MN to the ability of the Court of Protection to explore the care plan put forward by a public authority and the inability of the Court to compel a public authority to agree to a care plan which it is not willing to implement does not apply when the issue is the right to liberty under Article 5.  I accept that analysis.” 

The court did not authorise P’s deprivation of liberty at his current accommodation on the basis that nothing else is available.

Discussion
This case had gone on since 2011 although it was apparent that the accommodation did not meet P’s needs way back in 2006 when an occupational therapy assessment was undertaken.

The court held that NYCC was responsible for the delay for the following reasons:-

• It took almost two years since proceedings started before NYCC accepted it was responsible for P’s accommodation;
• It tried to pass its responsibility to the care provider to search for alternative accommodation;
• NYCC failed to deal with the issue of accommodation in the process of best interests in March 2014;
• Lengthy and detailed work had to be commissioned to consider the options for long term care and NYCC failed to approach the task with energy and imagination;
• The Housing provider was not provided with all the relevant material for it to make a decision;
• The search was unnecessarily limited as no consideration was given to shared outside areas;
• No property was likely to be found as P remained in the Bronze category of housing need (instead of Gold).

This is another recent example of the judge going to visit the P in his own environment, much like the judge in Wye Valley NHS Trust v B [2015] EWCOP 60.

It is a warning to local authorities and care providers to approach the task of establishing what is in the P’s best interest and making a real effort to find or agree alternative care packages/living arrangements; otherwise they will be left in a position where the patient may well be detained unlawfully.

Read the full text of the judgment on Bailii

​This is a judgment by Peter Jackson J on an application by the Wye Valley NHS Trust (‘the Trust’) to decide if it was lawful for the doctors treating the Patient (‘P’) to amputate his foot against his wishes.

Unusually the Judge met the Patient in hospital.

The Facts
The court was faced with several applications for welfare orders under section 16(2)(a) of the Act. The President of the Court of Protection in Re X [2014] EWCOP 25 and 37 devised a streamlined process in order to deal with the number of cases that would follow from the Supreme Court’s decision in Cheshire West and Chester Council v P [2014] UKSC 19 concerning patients who were deprived of their liberty.

On appeal of the President’s decisions and the streamlined process, the Court of Appeal in Re X [2015] EWCA Civ 599 held that it did not have jurisdiction to hear the appeal; however it gave guidance on what it thought ought be done - that the patient should be joined.

The court had to decide whether or not to continue with the streamlined process and whether or not the patient should always be joined as a party, and if so, who would be an appropriate litigation friend and could that person conduct proceedings without instructing a solicitor.

The Law
The court referred to the law set out in Cheshire West and the Court of Appeal in Re X.

The court also reviewed the European Law and the authorities referred to by the Court of Appeal.

The court compared the Patient to a Protected Party in Civil proceedings (Civil Procedure Rules 1998 “CPR’) and distinguished the protection needed in adversarial civil proceedings to the inquisitorial manner of the application of the best interest test.

It would be appropriate to appoint a family member or friend under the new Rule 3A under the Court of Protection Rules 2007 (‘COPR’).

The court looked at more use of section 49 reports rather than appointing a litigation friend.

The court examined the COPR thoroughly and in particular Part 17 which governs the appointment of litigation friends.

Decision
The court agreed with the President’s approach and the streamlined process he had devised.

The court disagreed with the Court of Appeal and held that patients did not have to become an automatic party to such applications (paragraphs 176 and 177).  The court relied heavily on the patient’s family members having the patient’s best interest at heart.

The court found that a family member is likely to be best placed to make independent checks on the patient and be appointed under Rule 3A; this would satisfy the requirements of Article 5.

The court found that there was no requirement for the litigation friend to act by a solicitor (see paragraphs 127-135).

Discussion
The court thoroughly looked at the difficulties with funding these types of cases and the tremendous problems that lack of funding causes.  

The court concluded that joining the Patient and appointing a litigation friend will not afford the Patient the protection of regular reviews and checks as it would if the family member or friend were to be appointed.

The court found that if a family member or friend were appointed under Rule 3A this could satisfy the requirements of Article 5.

It remains to be seen as to what the future outcome of these issues will be. The Judge disagreed with the Court of Appeal in its reasoning and the fact that the reasoning was not binding. This judgment is in contrast to the decision of Baker J in The Health Service Executive of Ireland v CNWL [2015] EWCOP 48 – 6/08/15. Baker J felt that it was extremely unwise to ignore what was said in the Court of Appeal even if the judgment was not binding. Baker J did distinguish what was said in the Court of Appeal in this case as it dealt with the recognition and enforcement of a foreign order and the Court of Appeal was dealing with cases of Welfare.

Although there are very practical reasons why the President decided what he did in Re X and imposing the streamlined process (PD10AA), and why Charles J had made conclusions he did, it does place great emphasis on the family members of the Patient, which may not be the same as the wishes and feelings of the Patient. In the Court of Appeal at paragraph 100 Black LJ expresses what she thinks was wrong with the President’s streamlined approach in relation to safeguarding the rights of the Patient:-

1. It depends heavily on the Patient expressing a wish to be joined in the proceedings or opposing the arrangements for them, or someone else who has their interests at heart; and
2. It depends entirely on the information being provided to the court in the application, usually issued by those who have made the decision that it is in P’s best interest to be deprived of their liberty and wanting the court’s authority.

The concerns raised by the Court of Appeal still do not appear to be addressed. Charles J called for the forms used in the streamlined cases to be reviewed and altered. Therefore we await the outcome and see if these forms address the concerns raised by the Court of Appeal (see paragraphs 223 to 229).

Read the full text of the judgment on Bailii