Re KT, DR, KH and DC (2018)

Keywords: Rule 3A (1.2) representatives, litigation friends, COP visitors

This is the latest case to address the issue of the participation of P, the person without capacity, in non-contentious deprivation of liberty cases (known as Re Xcases) by means of a Rule 3A (now known as a Rule 1.2) representative, or otherwise.

Previously (in JM), Charles J had ruled that all non-contentious proceedings for orders to authorise a deprivation of their liberty should be stayed where no family member or friend was able to be appointed as P’s Rule 3A representative. He had sought to engage central government attention to the need to identify a funded, realistic option for the participation of P in such cases.

Initial responses from central government continued to insist that local authorities should appoint a professional advocate, whilst failing to identify any funding that would enable them to do so. All of the other options previously identified (the Official Solicitor acting as litigation friend; the appointment of an accredited legal representative; or directing local authorities to provide a s.49 report) had previous been deemed not practicably available in the substantial majority of cases, on the basis that local authorities were not under a statutory duty to provide a representative and were, given the current extent of financial pressures on them, unwilling to do so.

In submissions made on this occasion, the Secretary of State for Justice sought to alter his previous acceptance of the position that local authorities did notowe a statutory duty to provide P with representation by contending that local authorities owed such a duty under the Human Rights Act 1998 Article 6 (to ensure due process).

Charles J declined to rule on the point itself, concluding that, even if such a duty were owed to individual incapacitated people, the primary duty still lay with the Secretary of State for Justice to enable the Court of Protection itself, to carry out its functions as a public authority, lawfully.

These four cases had been brought forward as test cases in response to an indication by the Government Legal Department that Ministers had agreed to provide funding to HM Courts and Tribunals Service to enable greater use of visitors by the COP. It was, therefore, necessary to consider whether the minimum procedural requirements of Articles 5 (and 6) and common law fairness in terms of the person’s participation would be satisfied by the appointment of a general visitor to prepare a report under s.49 MCA (provided that that report supported the making of an order authorising the Deprivation of Liberty).  

In considering this question, Charles J highlighted that:

“It is not suggested that visitors should be appointed as Rule 3A representatives, and so the question is whether, without making [the person] a [formal] party, the appointment of a visitor to write a report is a good enough option to provide the required procedural safeguards.” [para. 27]

He concluded that it was, identifying that a visitor would be independent of the commissioning body and have relevant expertise.

In order for a visitor’s report to satisfy the requirements of Article 5 the visitor should:

  • i) elicit P’s wishes and feelings and make them and the matters mentioned in s. 4(6) of the MCA known to the Court without causing P any or any unnecessary distress,
  • ii) critically examine from the perspective of P’s best interests, and with a detailed knowledge of P, the pros and cons of an offered care package, and whether it is the least restrictive available option, and
  • iii) keep the implementation of the care package under review and raise points relating to it and changes in P’s behaviour or health.

Charles J therefore accepted that the appointment of a visitor should go ahead in these (and other similar) cases in as far as resources are provided to enable the appointment of visitors.

Whilst expressing severe reservations about the adequacy of resources actually being offered by the Secretary of State for Justice (which appear to be in the region of funding for 200 reports a year), he concluded that those resources should be utilised as far as they are available in practice, identifying that:

“The result of the COP proceeding on the basis that it will generally accept an assertion by an applicant authority that a professional Rule 3A representative is not available at face value is that in most cases the COP will appoint a visitor for so long as that remains a practically available option.” [para. 88]

However, Charles J also expressed the clear view that, at best, the appointment of COP visitors was a short-term solution. He reiterated that (although P’s best interests were the pre-eminent consideration on a case by case basis) the appointment of professional Rule 3A representatives was in most cases a preferable solution:

“In my view, the appointment of a professional who could act independentlyas a Rule 3A representative and carry out regular reviews of P’s placement and care package on the ground would in most cases be likely to have advantages over the appointment of a visitor because it would provide a better basis of and for review and equivalent expertise and independence to that provided by a visitor.” [para.81]

Charles J remained highly critical of the failure of the Secretary of State for Justice (through officials at the MoJ and DoH) to address the key issue of how such appointments could actually be made in the continuing absence of funding to do so, referring to his comment in JM that:

“This has the hallmarks of an avoidant approach that prioritises budgetary considerations over responsibilities to vulnerable people who the Supreme Court has held are being deprived of their liberty.” [para.19]

Charles J was clear that the funding which appeared to be actually on offer from central government to enable COP to appoint visitors would cover at best no more than the immediate short-term backlog. Therefore, he pre-emptively ordered that future applications or reviews should be stayed and the Crown should be joined as a party as soon as a practically available process can no longer be achieved.

How the COP was to be enabled to progress the potentially large number (estimated at 53,000 per year) of non-contentious applications for welfare orders sanctioning Deprivations of Liberty in the longer term, remained unresolved.

Charles J concluded:

“It is understandable that a commitment to an open-ended provision of resources to provide visitors cannot be given, but:

  • i) the continued advancement of a solution that is not a practically available option, and in any event
  • ii) the advancement of a solution that contains no adequate assessment of the resources that are likely to be needed to enable the COP to deal with cases of this type other than in the short term,

coupled with the history of the approach taken by the Secretary of State, lead inexorably to the conclusion that it would be very unwise to proceed on the basis that as and when the present backlog, or part of it is cleared, and problems about the representation of P in new applications for or in reviews of welfare orders arise, that the Secretary of State will, through the promised review of the resources, address them promptly or constructively.

Rather, I am sorry that I have to conclude that the evidence in these cases shows that it can be expected that history will repeat itself and the Secretary of State will persist in taking an avoidant and unconvincing “pass the parcel” approach to the problems which he has a statutory duty to resolve,alone or through a constructive approach with the local and other public authority applicants.” [Paras. 64 & 65]

Full transcript at: http://www.bailii.org/ew/cases/EWCOP/2018/1.html