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All change in the Court of Protection

1. Consider this scenario: P, a mentally incapacitated person, is being deprived of his liberty by being (or is about to be) accommodated in a care home or residential placement. Nobody disputes that the placement is working (or would work) well and that it is in P's best interests. The local authority applies to the Court of Protection for an order authorising the deprivation of liberty. Common sense would suggest that nearly all such applications ought to be straightforward, take a matter of weeks, be concluded on the papers and involve perhaps one lawyer for the local authority.

2. Yet, as practitioners in the Court of Protection are well aware, such applications have hitherto been anything but straightforward. They've often taken months, involved numerous hearings, required the instruction of several experts and engaged several lawyers. Well, as a result of Mr Justice Charles's judgment in NRA & others [2015] EWCOP 59 this unnecessary deployment of lawyer-led resources ought to become a problem of the past. From now on welfare applications of this non-contentious nature should have these features:

  • P as a party? P does not normally need to be made a party (§§176-178, 269(1)). In an appropriate case P should now be discharged as a party (§236). If P is not a party then the need for a litigation friend will disappear. But for good measure Charles J made these two points about litigation friends:
  • The Official Solicitor as a litigation friend? There should rarely be a need for the Official Solicitor to act as P's litigation friend (§236). 'In a non-contentious case [the Official Solicitor's] input through those he instructs (usually solicitors) may well add nothing of value' (§50). Hitherto, in an application which became contested, often because of the Official Solicitor's involvement, his costs might have been in excess of £50,000 (§77)
  • Family or friends as a litigation friend? Where there is evidence of a suitable family member or friend who has been involved in P's care the appointment of any sort of litigation friend would normally add little as other ways should be found for those people to present their views (§§45-46). However, in an appropriate case a family member or friend can be a litigation friend (§§162, 167, 173).
  • What's required? P's best interests are best served with input from a person who can perform three roles: (i) eliciting P's wishes and feelings without causing P any unnecessary distress; (ii) critically examining P's care package; (iii) keeping that care package under review (§164).
  • Achieving that objective? The Court of Protection rules (particularly new rule 3A) should be applied flexibly to ensure that P's minimum procedural safeguards are met (§§195, 239) and this may mean:

– If P is made a party then a family member or friend will typically be able to act as P's litigation friend (§§162, 167, 173). Such a person can often provide a degree of independence (§§217-219).

– A family member or friend can be appointed as a Rule 3A representative (§233). This is often the best way of safeguarding P's interests because such a person will be dedicated to P's care (§269(2)).

– A judge can play a greater role (§254) and where he considers that more information is required he can make orders for s49 reports and issue witness summonses (§§244, 261, 269(4)).

  • Court hearings? There will often be no need for a court hearing (§104).
  • Streamlined paper disposals? It would be helpful if applicants prepared reasonably short care plans (§223) that addressed specific issues (§§225-226).

3. Legal aid? Charles J considered the availability of legal aid for deprivation of liberty cases and he noted how it will normally only be available for P if there is likely to be a hearing (§§89, 94, 96). Thus 'legal aid will not be an available source of funding unless the case turns out to be contentious and so requires a hearing' (§108). But he warned that any attempt to claim that a case was contentious so as to facilitate an award of legal aid may cause the court to consider 'whether the course taken was a contrivance' (§105).

4. Policy driven? It is likely that some lawyers will criticise the NRA judgment for being driven by policy rather than law. In fact Charles J grounds his judgment on a consideration of what the European Convention on Human Rights and domestic law required (§§179-196). But more to the point: why shouldn't the way vulnerable people are protected be a matter of policy? The following comments from Charles J are about policy but nobody could seriously claim they have no place in a judgment of this nature:

  • 'But the well-known difficulties in identifying and appointing the Official Solicitor as a litigation friend and the costs and delays of so doing mean that it did and does not take a crystal ball to see that the joinder of P as a party in all such cases will create burdens in terms of both delay and emotional and financial cost.' (§21)
  • 'The people that know P best and have often spent a long time negotiating with public authorities and getting the best care package available for P are members of P's family. And so it seems to me that to promote P's best interests their autonomy, dignity, status, and their past and continuing care and support of P needs to be recognised and promoted.' (§11)

5. If the devising of a streamlined system that promotes P's best interests, their autonomy, dignity and care needs requires a judge to consider issues of policy then that is something to be welcomed, not criticised. Some lawyers have a tendency to elevate abstract legal principles over the interests of the people that laws are intended to protect. This judgment from Charles J is an antidote to that problem.