Rochdale Metropolitan Borough Council v KM (by her litigation friend) & Ors
Peter Edwards Law case
1. Introduction
1.1. This case was one of a number selected by the President for consideration at a directions hearing. This particular case was the only one where a representative of a patient was heard, the remainder all being either Local Authorities, and in one instance, a commercial care provider. All had in common one theme, which was that the parties were concerned with what steps needed to be taken when P was deprived of their liberty, but where there was no statutory regime to protect their ECHR Rights (primarily pursuant to Article 5 of the ECHR).
1.2. The need for such a hearing was as a result of the decision by the Supreme Court in P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Cheshire Council and another (Respondents); P&Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent) [2014] UKSC 19. It is anticipated that the consequences of this decision will lead to a very large number of individuals who hitherto were not thought to have been deprived of their liberty, now having the status of being deprived of their liberty, but with no lawful authority for that deprivation, and a consequent breach of their Art. 5 Rights.
1.3. The purpose of the directions hearing (which was held in open court, albeit with reporting restrictions to prevent identification of any P’s) was to set an agenda for a hearing in June 2014.
2. The Issues
2.1. The President identified a number of issues, and invited Counsel for all parties to contribute to the same.
2.2. Categories
2.3. It was suggested that there are 3 main categories of those who might be affected by the consequence of the Supreme Court decision;
(1) those who are placed within a care home or a hospital (and where the provisions of Schedule A1 could apply) but where due to the increased numbers of those who were now deprived of their liberty, and the number of Urgent or Standard Authorisations required, there were insufficient Best Interests Assessors to deal with the quantity of work. In this situation, there would have to be an application to the Court of Protection so that lawful authority could be obtained;
(2) those who are in ‘public care’, but where Schedule A1 could not be used in any event, and in respect of whom lawful authority for a deprivation of liberty was required by way of s.16 (2) (a) of the MCA 2005. It was anticipated that there would be a very substantial increase in the numbers of such individuals, given the test for deprivation of liberty which now exists. Authority for such deprivations could only be obtained by way of the Court of Protection;
(3) those who were not living in any form of public care, but were living at home under a regime which amounted to a deprivation of liberty, and where due to the involvement of the state, or where the state had sufficient interest, a lawful authority for such deprivation would be required. It was envisaged that this might represent the largest increase in applications to the Court by way of applications pursuant to s. 16 (2) (a) of the MCA 2005.
2.4. In addition, it was suggested that there might be the following categories, which are a form of hybrid of those listed above, such as;
(a) P’s who are within category (1) or (2) for part of their lives, but in category (3) for other parts of their lives;
(b) those whose cases had been before the Court in the past, and whose placement had been authorised by the Court as being in their best interests, but where at the time the order was made, the law was such that they were not deprived of their liberty, whereas now they are, and without lawful authority;
(c) those who were subject to orders via the Mental Health Act 1983 (eg guardianship, or conditions imposed on CTO’s) and which amounted to a deprivation of liberty but with no authorisation for the same;
(d) children between the age of 16-18 who were deprived of their liberty whilst fostered in private homes, or ‘looked after’ children via ss. 20 & 22 of the Children Act 1989.
2.5. Applications & Reviews
2.6. In terms of the procedure for making applications, issues are to be considered such as;
(a) can an initial application be dealt with on paper by a Judge, or does there need to be an oral application?
(b) in terms of reviews of orders made what is to be the frequency of such reviews?
(c) can the review be on paper, or is there a need for an oral hearing?
(d) what is the role of the Official Solicitor in such hearings?
(e) how is the Court to cope with what is envisaged to be an exponential increase in the number of reviews that will now be required (particularly where P is very young)?
2.7. Procedure & Rules
2.8. The issue of the current complexity of making applications was considered (eg the plethora of COP Forms that are required) and whether
(a) the existing forms can be modified in order to streamline the procedure (and the attention of Counsel was drawn to the protocols and forms used within the Family Division as a potential model for a new structure);
(b) whether the current Rules might require alteration for the same purpose (eg whether there is a need for permission to be sought, and what function this serves);
(c) whether there needs to be a formal distinction between the 3 categories described above, in terms of what procedure is required;
(d) a list of what evidence is required for any application, so that the number of pages in any application can be numbered in tens, rather than hundreds;
(e) a checklist of specific documents which if not present, will prevent the case from proceeding (and which can be checked administratively by court staff);
(f) any statement (except medical evidence on capacity, which is often not in dispute) should (i) explain the setting in which P is living and the features of that environment which are said to amount to a deprivation of liberty; (ii) explain that this is least restrictive option, and why; (iii) copies of care or support plans, and/or best interest assessments.
(g) whether there should be a stipulation as to the length of such documents;
(h) whether there should be a standard format for bundles.
2.8. Official Solicitor and IMCA’s as litigation friends
2.9. The pressure on the Official Solicitor is to be considered, and whether P always needs to be made a party, and if not, what the circumstances might be where no litigation friend is required.
2.10. The issue of the status of IMCA’s as litigation friends is to be considered, and whether there it is an anomaly that they receive no remuneration for discharging this function (whereas the Official Solicitor is not obliged to act unless his costs are covered (save in certain instances).
2.11. Miscellaneous
2.12. It was hoped that the Local Authority applicants would be able to produce some statistics as to the cost of making all these applications (not just the issue fee, but the number of work hours that it would take to deal with them).
2.13. The impact of the increase in work in the regions, given that it was the intention of the Court of Protection to move its work away from London.
2.14. How the problems associated with either the lack of legal aid, or consequences of legal aid being available for some applications (eg s.21A on one basis) but which are then available on another, if the case turns into a s.16 application (where legal aid is means tested).
3. Conclusion
3.1. All parties will be providing submissions on the above (and perhaps more) within a period over the next 3 weeks. This includes submissions by the various relevant Government departments, if they so wish.
3.2. As the case is to be listed in June 2014, it is likely that a full and thorough analysis of all of the above will be available in the fairly near future, and which may address the difficulties which all face in dealing with the fresh changes as a result of the decision in P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Cheshire Council and another (Respondents); P&Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent)
Jonathan Butler
Head of Court of Protection & Community Care Law Team, Deans Court Chambers.
May 8th 2014
Instructed by Jolanta Edwards Peter Edwards Law