This case involved an application by P for an order under section 21A of the Mental Capacity Act 2005 discharging the standard authorisation, which authorised a deprivation of liberty in his current accommodation.
The case was before District Judge Glentworth This case involved two linked appeals from an order of District Judge Glentworth dated 13 July 2015, (judgment reported as North Yorkshire County Council v MAG, GC and A Clinical Commissioning Group [2015] EWCOP 64). They were brought by North Yorkshire County Council (“NYCC”) and A Clinical Commissioning Group (“ACCG”) against the refusal of an application brought by NYCC for authorisation for the deprivation of liberty of a man (“MAG”) at the home where he has lived since 2006.
The appeal was heard by the Honourable Mr Justice Cobb. This is an application made by the Local Authority (‘LA’) for the court to determine the circumstances where a child (‘P’) aged 14 years who resides in a children’s home under an interim care order (‘ICO’), who, as the parties agree, is deprived of his liberty, can be deprived lawfully by the consent of the LA or whether the court will sanction the deprivation of liberty, and if so under what jurisdiction/power.
Teenage boy (“A”) detained under the Mental Health Act section 3. Application for orders and declarations from the Court of Protection depriving him of his liberty for the purposes of administering to him medical treatment to address his difficulties.
Is A an ineligible person under the Mental Capacity Act 2005 by virtue of his detention under the Mental Health Act? Answer, no as the Mental Health Act regime does not cover proposed medical procedures in this particular case. This case is the second appeal from a judgment from Mostyn J regarding whether or not KW (‘P’) was being deprived of her liberty and that the judge misinterpreted the consent order when he said that the Court of Appeal had not decided whether or not P was being deprived of her liberty.
This case looks at the procedural aspects of a Civil Appeal and is of more relevance to practitioners rather than a layperson. This is a judgment by Charles J dealing with the issue of joining a patient to proceedings pursuant to section 16(2)(a) of the Mental Capacity Act 2005 (‘the Act’) which involves a Deprivation of Liberty, in the light of the Court of Appeal’s judgment in Re X (Court of Protection Practice) [2015] EWCA Civ 599. 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:-
Read the full text of the judgment on Bailii This case concerns an application by the Public Guardian to revoke an LPA for property and financial affairs and for an order that a panel deputy be invited to make an application to be appointed as deputy with one of the attorneys, ICL being directed to provide all details of ARL’s financial affairs and in particular proceeds of the sale of her house.
The person who drew up the LPA and acted as certificate provider (Lyn Parkin) sought to be a party to the proceedings on the basis that the LPA should be revoked and that she and JJT (daughter of ARL) and herself be appointed as co-deputies, ICL be accountable for his actions and reimburse his mother’s estate in full. The application to be joined was granted as was the full application made by Lyn Parkin. The issue here concerned the placement of an incapacitated person and the effect of the geographical location on family contact. The court had to consider whether more appropriate accommodation should be sought.
There was a challenge to section 21A and Care Act 2005 (DOLS) and a consideration of capacity (the P's sister did not accept the expert's evidence). 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. Health and welfare application by a local authority seeking declarations:
In relation to contact the court did not undertake a factual enquiry as to what may or may not have led to the breakdown of the relationship between AL and staff at the current home BH. |
Case summaries on every Court of Protection case & other relevant decisions with links to the full judgment where available.
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