Last March the Supreme Court gave judgment in Cheshire West on the meaning of 'liberty'. It gave the word such an expansive definition that the number of local authority applications to the Court of Protection, in respect of persons suspected of being deprived of their liberty, initially increased by 1,000% (see Bournemouth, §38).
The Re X procedure
Then the President of the Court of Protection gave 'judgment' to deal with the 'pressing issue: the practical and procedural implications of the Court of Protection' of dealing with the large increase in caseload. His 'judgments' given in August (Re X No. 1) and October (Re X No 2) 2014 introduced a streamlined procedure for dealing with such applications which became known as the Re X procedure. Central to it was the notion that P, the incapacitated person, would not always need to be a party to the proceedings.
Now the Court of Appeal has given 'judgment' on the Re X procedure and concluded that the President had no jurisdiction to even give the 'judgements' that he gave. So in fact he has merely given, not judgments, but an opinion which 'cannot be regarded as authoritative' (§§ 57-58, 113, 127, 156, 164).
Furthermore, the Court of Appeal proceeded to give its mere opinion (for it had no more jurisdiction to give a judgment that the President had) that the notion that P need not always be a party to the proceedings was wrong (§§ 104, 127 & 171).
Don't take hypothetical or academic issues
There is an important point for practitioners in the Court of Appeal 'judgment' which is that in order for a court to give a judgement on a case there must normally be an issue involving one of the parties and that courts will not normally give rulings on a hypothetical or academic issues. What happened in the Re X cases was that the President selected a number of cases in order to engage in 'a consultative exercise intended to promote the development of new rules of procedure'. And the procedural issues that the court considered did not even arise in the actual cases selected. No matter how desirable that may have been courts do not have 'a licence to ignore jurisdictional and procedural rules completely nor do they permit the courts to be used to determine issues just because it would be useful to have an authoritative answer' (§47).
The Court of Appeal noted that no consideration was given to the academic nature of the two Re X hearings '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.' (§ 112). Moreover, the Court was critical of the Official Solicitor who had acted through three counsel as advocate to the court but who did not give the court the impartial objective submissions that were required (§§ 30, 129, 166).
Review your Re X cases
This is all most unsatisfactory for local authorities and other parties who have cases in the Court of Protection particularly where directions have already been given after having regard to the Re X procedure which, we now know, has no determinative judicial support. Moreover, cases where P is not a party may be subject to appeal although it should be noted that court orders remain binding unless and until overturned.
A final related note: applying the Cheshire West principles is not always straightforward as Mr Justice Mostyn noted in this recent case of Bournemouth BC v PS & DS.