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'join the party!' - re x latest

17 June 2015

The Court of Appeal leaves in confusion the ‘Re X’ process for deprivation of liberty in the community

Court of Appeal has handed down a landmark judgment

Today (16 June 2015), the Court of Appeal has handed down a landmark judgment on the ‘Re X’ process for authorisation of a deprivation of liberty in the community.

The story so far…

Some context, briefly: Following the Supreme Court judgment in Cheshire West on 19 March 2014, clarifying the definition of a ‘deprivation of liberty’ (DoL) as ‘under continuous supervision and control and not free to leave’ regardless of it being appropriate or ‘normal’ for a person with those needs, it has been obvious that there are tens or hundreds of thousands of people who are DoL by the arrangements made by the state for their health and social care who lack capacity to consent to this. Their Article 5 ECHR rights will be breached unless a due legal process is in place to review and authorise this. Without this, people deprived of liberty unlawfully may have a right to compensation.

So what?

The impact has been a colossal increase in applications to the Deprivation of Liberty Safeguards (DOLS) system, which exists to allow authorisation of a DoL in a care home or hospital setting only. But arguably the greater challenge is for the cases of DoL in other settings – eg patients with dementia or learning disability who have very intensive care packages likely to amount to continuous supervision and control and not being free to leave, who are in their own homes or in supported living, for example. For those cases, outside the scope of DOLS, the DoL can only be lawfully reviewed and authorised by the Court of Protection. No one knows how many applications to court will have to be made for such cases (and their, at least, ongoing annual review) but it will certainly be tens of thousands. The onus falls on the public body responsible for the situation to bring the case to court – ie usually the local authority or CCG which commissions the care package that may amount to a DoL – but clearly the existing court processes, geared and resourced to deal with a couple of hundred such cases a year to date, would need serious rethinking.

Re X

This is what LJ Munby was trying to achieve in proceedings, which came to be known as ‘Re X’, in which he pulled together before him a sample of cases raising these issues, and convened a hearing in June 2014. At this, many individual parties, as well as representatives of the Department of Health and Ministry of Justice, ADASS, the Law Society and other interested parties, addressed him on the kind of process that should be implemented. In August and October 2014 LJ Munby published judgments in which he set out his thinking on some of the key procedural and practical issues – asserting, for example, that it is permissible for a process to review DoL without P (the person deprived) being a party to proceedings, and that while such cases must be reviewed by a judge, rather than a court official, this could be done on the papers, without a hearing, as a streamlined process where there is no substantive dispute.

Reflecting these judgments, a new Practice Direction and Court of Protection Form (COPDOL10) were published in November 2014, establishing the ‘Re X’ process along these lines, and a raft of judges around the country have been trained up, ready to deal with the expected flood of cases. There’s also been an amendment to the Court of Protection rules, due into force on 1 July 2015, which requires the Court to consider whether P’s participation can be secured and interests protected in another way, without being a party to proceedings.

The Court of Appeal

Two of the individual patients in the Re X cases went to the Court of Appeal arguing, among other things, that a process determining their deprivation of liberty without them being a party was not fair and breached their human rights. Others joined the appeal on related issues.

The appeal hearing lasted 2 full days in February 2015, and though a range of issues were raised in the papers, the Court of Appeal was only interested in arguments about whether P should be a party, and more fundamentally, whether the Court of Appeal had any jurisdiction at all. Each of the individual appellants had in fact been made a party to the proceedings to review their DoL, and so had arguably no standing to say that they were adversely affected by the LJ Munby / Re X approach. That said, when the court did hear argument about the issue of party status, there was a lot of doubt that the process could be fair if P was not to be joined as a party.

The judgment

The judgment published this morning includes a fully reasoned judgment from each of the 3 judges, led by Lady Justice Black. The headlines are:-

  • though sympathetic with the challenges facing LJ Munby, all 3 judges are critical of the unorthodox approach taken to deal with the issues, (eg para 58, 127, 146)
  • but they conclude that the Court of Appeal has no jurisdiction to overturn the ‘Re X’ process – which should instead be properly challenged by judicial review against the Practice Direction (para 50)
  • and, crucially, they all say that (if they actually did have the jurisdiction to decide this) they would have said that P should be joined to any DoL proceedings – for instance, per Lady Black

"...it is not appropriate in my view for P’s participation in proceedings to turn in any way upon whether he wishes to participate, or indeed on whether he expresses an objection to the form of care that is being provided or proposed. There is too high a risk of slips ups in such a scheme. Article 5 requires greater protection from arbitrariness.

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 … [but] given the tools presently available in our domestic procedural law, I see no alternative to that being so in every case"

(LJ Black, para 103-104)

LJ Gloster said that LJ Munby’s conclusion that P need not be a party “is not consistent with fundamental principles of domestic law and does not provide the degree of protection required by the Convention or the Strasbourg jurisprudence” (para 127, and LJ Moore-Bick says essentially the same thing at para 171).

Strictly, the views on the substantive issue of P’s party status is just non-binding opinion (what lawyers call ‘obiter’) as the court had already decided that it didn’t have jurisdiction to decide these issues in this appeal. But there’s no doubt that this leaves the current Re X process in confusion, if not fatally flawed.

There is already grave concern at the relative small take up of the Re X process, with only 200 or so applications made to date nationwide, and this reversal for attempts to streamline the process may not help encourage more engagement.

If P must be a party to any proceedings, with a litigation friend, and all the issues of access to representation and funding which that involves, this will inevitably be a lot less streamlined than LJ Munby may have hoped, with consequences for delay, and costs, and the resources and time needed generally to get the huge number of cases through the process.

Now what?

Unfortunately, the ‘cavalry’ (the Law Commission proposals for reform of the whole system) is still some distance away – though their consultation is due out in a few weeks on 7 July 2015, draft legislation is expected to be 2 years behind that in Summer 2017, and will take some time to implement, even if adopted. Though there may now be even more pressure to accelerate that timescale, with a debate in Parliament scheduled for tomorrow afternoon, it is hard to see any new system being in place much sooner than 2018.

In the meantime, and despite the best attempts of some judges to pare back the impact of Cheshire West by finding ways to disapply it in community settings, we have the ongoing problem of widespread unlawful DoL, potentially incurring significant liabilities and, for the community settings in particular where DOLS cannot be used, the well intentioned attempt to produce a ‘streamlined’ route through the Court of Protection is now in some confusion.

We await any formal response from the court or the Ministry of Justice with interest, but this is not just of academic interest. At the frontline we risk being left with the worst of all worlds – with individuals identified as having rights without the practical means for these to be readily implemented, and already stretched public bodies with obligations that cannot practically be met. The cavalry cannot arrive soon enough!

For now, to discuss a practical approach to implementing the rights of individuals in your care, while protecting your organisation from potential liabilities, please do not hesitate to contact us.

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