​Re NRA & Ors [2015] EWCOP 59

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:-

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