This case concerns an appeal against the decisions made by the President of the Court of Protection, in the case of X v Ors (Deprivation of Liberty)  EWCOP 25, 7th August 2014, and X v Ors (Deprivation of Liberty) (Number 2)  EWCOP 37, 16th October 2014.
The leading judgment is given by Black LJ who considered the practice and procedure post Cheshire West and in particular the issues:-
This case will not necessarily assist a litigant in person but is helpful for legal practitioners.
Since the decision of the Supreme Court in Surrey County Council v P and others (Equality and Human Rights Commission and others intervening), Cheshire West and Chester Council v P and another (Same_intervening)  UKSC 19 (‘Cheshire West’) the court in Re X was concerned with the increased applications in relation to deprivation of liberty cases. The President therefore listed a number of DOLS cases before him and asked a series of questions (25 – as set out in  EWCOP 25) to be answered at a subsequent hearing. Following further hearings and in answer to those questions the President proposed a streamlined process in order to deal with the DOLS cases that would be compliant to Article 5. The President sought “ collective representation” by local authorities, the Official Solicitor and the Department of Health.
The appeal raised questions as to whether or not the President was correct in determining (see paragraph 20):-
1. Whether the person being deprived of liberty must always be joined as a party - the President said not;
2. Whether the initial decision and subsequent reviews required an oral hearing - the President said not necessarily; and
3. Whether a litigation friend may conduct the litigation without a solicitor.
Grounds 2 and 3 were left ‘in abeyance’ until after the judgment.
The court concentrated on the jurisdiction issue as to whether or not it had jurisdiction to hear the appeal, in particular the various statutory routes such as s53 MCA 2005, and Rule 57 COPR 2007 and the apparent regular interchange between “decision” and “order”, together with Rule 172(i) and (2)(paragraph 41) concerning applications for committal as well as Part 52 CPR. Moore-Bick LJ stated at paragraph 147:-
‘The jurisdiction of the Court of Appeal is statutory. In relation to decisions of the High Court it is contained in section 16 of the Senior Courts Act 1981, which provides that it shall have jurisdiction to hear and determine appeals from any "judgment or order" of that court. There is no judgment or order in this case, but that is not necessarily fatal (as the authorities to which I shall come in a moment demonstrate) and in any event this is not an appeal from the High Court. It is an appeal from the Court of Protection, in respect of which the court's jurisdiction is governed by section 53 of the Mental Capacity Act. Section 53(1) provides that the court shall have jurisdiction to hear an appeal against any "decision" of the Court of Protection.’
The court had to establish whether what the President did was within his jurisdiction; and whether or not the Court of Appeal can, or should, entertain the appeal against his determinations. Black LJ sets out at paragraphs 24 to 29 of what happened at the hearings before the President.
Black LJ set out the right of appeal pursuant to section 53 of the Mental Capacity Act 2005 (‘the Act’). She also considered previous authorities in attempting to interpret the meaning of the word ‘decision’ referred to in the Act and whether or not what the President did could fall within that definition for the purposes of the appeal (see: paragraphs 31 to 44). At paragraph 42 she stated:
‘Having surveyed the Act and the Rules as a whole, I cannot accept that those responsible for drafting section 53(1) intended the word "decision" to have the special, wider meaning for which the parties contended, and in particular to confer appeal jurisdiction in a case such as the present. The general context of applications under the MCA 2005 does not support this any more than does the wording of the Act and the Rules. The purpose of the Act is to allow decisions to be taken for individuals. It proceeds upon the basis that there is an individual who lacks capacity, "P". It is P and certain others associated with him who can apply without permission to the court for the exercise of its powers under the Act (section 50(1)). Anyone else must seek permission to apply and the court determining that application must have particular regard to the position of the person to whom the application relates (section 50(2) and (3)). There are applicants and respondents in the proceedings just as there are in other forms of litigation. In that context, in my view, "decision" cannot mean just any decision made by the Court of Protection; it must mean a decision taken in a lis involving P or in some way about P. If the meaning of the word was intended to be broader than that, distancing the role of the Court of Protection so far from the normal role of courts as to enable the judges of that court to decide points of law and practice on a hypothetical basis, that would, in my view, need to have been clearly indicated in the Act and/or the Rules. I can detect no such clear indication.’
At para 44 she stated:
‘In short, therefore, I am not prepared to accept the parties' argument that because the President decided something when he was sitting in the Court of Protection, that something was "a decision" within the meaning of section 53 and can be appealed to this court. The President's rulings were only decisions giving rise to an appeal, in my view, if it can be said that he was determining issues in the cases before him. I will return later to that question, which is not straightforward given that no one has been able to identify any case in which the issues that he ruled upon had actually arisen by the time he heard argument and gave judgment.’
The difficulty was that there were several cases and it could not be said that the issues before him related to the appellants.
At 57 she stated:
“This case demonstrates the problems that can arise where formalities take second place to expediency, even when that happens for the very best of reasons.”
And at 58:
“It is with regret that I reach this conclusion as I have much sympathy with the President's determination promptly to devise and introduce a procedure to cater for the anticipated increase in the workload of the Court of Protection following the Cheshire West decision. However, the particular course he adopted was not one that was open to him, in my view. Furthermore, it was unnecessary to proceed in this way when there was a well established method available by which he could regulate the procedure for deprivation of liberty cases, namely by means of a Practice Direction of the type that was, indeed, made in November 2014. Had that route been adopted, the legal status of the guidance would have been clear and the means of challenging it plain.”
Gloster LJ at paragraph 112 stated:
‘As Lord Justice Moore-Bick says in paragraph  of his judgment, and Lady Justice Black says in paragraphs  –  of hers, it is wholly unclear if, and, if so, to what extent, the 25 issues set out in the annexe to the order dated 8 May 2014 ("the 8 May order") actually arose as live issues in the 13 numbered applications referred to in the heading to that order, or in case number 12488518 and the 28 other applications referred to in the heading to the two judgments dated respectively 7 August 2014 ("the 7 August judgment") and 16 October 2014 ("the 16 October judgment"). No consideration appears to have been given to that question, either by the President or by any members of the lengthy cast of leading and junior counsel appearing, no doubt at considerable public expense, for the various parties listed on the first page of the two judgments.
If, and to the extent that, such issues did not arise as real issues in the numbered applications technically listed as before the court, the President had no jurisdiction to hear the matter. As Lord Loreburn L.C. stated in Glasgow Navigation Company v Iron Ore Company  AC 293, HL at 294:
"…it was not the function of a court of law to advise parties as to what would be their rights under a hypothetical state of facts."
In that case the House of Lords (despite having heard full argument) refused to entertain an appeal on the grounds that the action itself (a claim by owners against charterers in respect of time lost in discharge of owners' vessel) was incompetent, because it was based, not on the actual contract between the parties, but on an assumed, hypothetical one. The House of Lords not only refused to make any order on the appeal but also dismissed the action, with no order as to costs. Moreover, where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given. Those cases are an instructive lesson even in today's more flexible times.’
The court considered the case law in relation to appeals that have been determined which were effectively academic, but distinguished them from the present case.
At paragraph 156 Moore-Bick LJ stated:
‘The importance of all this for present purposes is that it means that in order for there to be a ‘decision’ capable of supporting an appeal there must be the determination of an issue arising between two or more parties to proceedings before the court’
Gloster LJ stated at paragraph 22 that the wide powers to manage cases in the Court of Protection did not extend to the court making general declarations or directions in ‘a vacuum, wholly divorced from the case specific circumstances of the particular application…’.
The court held that the President did not have jurisdiction to do what he did and therefore the Court of Appeal did not have jurisdiction to hear the appeal.
Black LJ was prepared to set out what she would have decided if she had to decide the appeal in relation to Ground 1 of the appeal. After reviewing the authorities on the issue as to whether or not a person being deprived of their liberty should be joined as a party she stated that it would be necessary for a person being deprived of their liberty to be made a party in the relevant proceedings (paragraphs 59-109, Moore-Bick agreeing at paragraphs 171-172).
The court found that the President should not have held the hearings he did which was effectively a consultation process in order to bring about change to the way applications in these cases are dealt with. The new Practice Direction 10A came into effect in November 2014.
The court considered the alternative ways in which the issue could have been dealt with it. It considered Part 19 of the Civil Procedure Rules 1998 which deals with Group Litigation as a possible route the court could have taken as long as compliance with the conditions of that Part where followed [paragraph 126]. Further the President could have issued a new Practice Direction (which of course he subsequently did).
The issue as to whether P should be a party was of particular concern given the “streamlined process” proposed by the President. At para 83 it was stated in relation to P automatically having party status:
“Standing back from the detail, it is noteworthy that P is not routinely made a party to Court of Protection proceedings concerning him, though he can be joined (with a litigation friend) and he will, in any event, be bound as if he were a party. A degree of participation by P is contemplated in that he is to be informed of certain things and may be heard sometimes but it is nothing like the degree of participation that a party has in proceedings. If we were to be of the view that it was necessary for P to be a party to Court of Protection proceedings relating to his liberty, the MCA 2005 and the Rules present no obstacle and he could be joined. Those who drafted them do not, however, appear to have been persuaded that there was any situation in which P's joinder as a party was a necessity”.
In paragraph 100 the court went on to observe the difficulties with the President’s approach, having considered the very recent authority of M.S v Croatia ( No 2 )  ECHR 196 which develops the earlier authority of Winterwerp. 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.
Black LJ looked at the protection for Patient’s under the Schedule A1 regime and those applications pursuant to section 16(2)(a) where the safeguards of a relevant person’s representative will not have been appointed (paragraphs 101-105).
With the concerns in mind it is imperative that an applicant must ensure that all the relevant material is placed before the court in order to safeguard the Patient in the streamlined process even if perhaps it is detrimental to what the applicant is seeking the court to do.
Developing this theme at para 104:
“I do not go so far as to say that no scheme in relation to deprivation of liberty would comply with Article 5 unless it provided for deprivation of liberty proceedings in which P was formally a party. The Schedule A1 procedure (with the initial authorisation conferred by the local authority but with provision for a challenge under section 21A) has been accepted as providing appropriate safeguards in relation to deprivation of liberty and I entirely accept that it could be extended to cover a wider category of case. Furthermore, I accept that it might be possible to take the best of that procedure and to devise a less complex process which will still protect those whose liberty is in the balance. I cannot agree with the President, however, that the streamlined scheme he devised provides the elements required for compliance with Article 5. I stress that I am only concerned, at present, with whether P must be a party to the deprivation of liberty proceedings. Given the tools presently available in our domestic procedural law, I see no alternative to that being so in every case.”
And concluding in relation to the scheme proposed at para 106:
“The President was confident that the system that he set up would ensure that where this sort of participation was required, the streamlined procedure would not be used and P would be able to be a party to the proceedings and, in that sense, would have "the opportunity to be heard" and the Secretary of State, in his submissions to this court, supported that conclusion. In my view, however, it is not possible to place sufficient reliance on the process devised for it to be said to constitute such an opportunity. It is not only that there is too significant a risk that cases would slip through the net, going unrecognised by the applicant and by the court despite the best efforts of all involved. In addition, I agree with the submission that the process set up by the President amounts to placing an additional hurdle in the way of P participating in the proceedings – instead of being a party automatically, there is an additional process to be gone through before he is joined, namely the collection/provision of material to persuade the court that he wishes/needs to be joined. I remind myself that no other example could be found of an adult whose liberty was in question in proceedings before a court or tribunal not being automatically a party to those proceedings. P is therefore in a position which is the opposite of what the Strasbourg jurisprudence requires, namely that the essence of the Article 5 right must not be impaired and there might, in fact, need to be additional assistance provided to P to ensure that it is effective.”
In the light of this judgment and the concerns raised it will be interesting to see if PD10A is amended.
Read the full text of the judgment on Bailii
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