EM, Re [2022] EWCOP 31

Judgment from Mostyn J clarifying points around participation of P, anonymity and the correctness of the standard transparency order.

The judgment arose out of Mostyn J’s concerns that he had been forced to make orders involving the deprivation of EM’s liberty with inadequate participation from him. EM had been diagnosed with malignant melanoma and brain metastases. The trust was seeking an order to remove him from his home to a hospital setting over concerns about his environment and refusal of care. At an urgent hearing on 1 July 2022 Keehan J decided that course of action was in EM’s best interests - on an interim basis - though he was unrepresented. A further hearing on 7th July before Mostyn J who was requested to approve a move to a care home. He granted the order but with misgivings given EM’s lack of participation: he did have statements and letters from the care team but did not think they amounted to meaningful "participation" in any true sense of the word.

After reviewing the case law around participation of P, and analysing  he sets out a fundamental rule at [31]

(1) Subject to the exception in (2), where an application is made which seeks the deprivation of P's liberty, P must be joined as a party to the proceedings and a litigation friend (or an accredited legal representative) must be appointed to act for P.

(2) The exception referred to in (1) is where an interim order is very urgently needed and there is just not enough time to secure P's representation before the hearing. But at the hearing P's representation at future hearings must be enabled.

Mostyn J also makes comments on anonymisation of orders (“a terrible practice”) and on when a balancing exercise may be required for reporting restrictions and transparency orders.

Read the judgment on Bailii