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Court of Appeal comments on deprivation of liberty and being party to proceedings

The Court of Appeal has held that it did not have jurisdiction to determine appeals against the President of the Court of Protection’s Re X rulings in which he sought to streamline procedures for dealing with certain types of deprivation of liberty cases.

However, the three judges – Lady Justice Black, Lady Justice Gloster and Lord Justice Moore-Bick – all observed (obiter) that they considered it necessary, presently, for P to be a party to the proceedings to ensure compliance with Article 5 of the European Convention on Human Rights (the right to liberty and security of person).

The Re X rulings by Sir James Munby, the CoP President, were an attempt to deal with an upsurge in deprivation of liberty cases in the Court of Protection, following the Supreme Court’s landmark judgment in Cheshire West.

The latter judgment meant that considerably more individuals were considered to have been deprived of their liberty than was previously thought to be the case.

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At the heart of the Re X proceedings were deprivation of liberty cases where individuals live in supported living placements or the home. Such deprivations of liberty are outside the Deprivation of Liberty Safeguards regime and can only be authorised by the Court of Protection.

The President had suggested that where P was not a party, their rights could be protected by a requirement to consult them about their deprivation of liberty.

Two parties, represented by Irwin Mitchell, appealed, seeking to argue that Article 5 ECHR required that P must always be a party to the proceedings for authorisations of deprivation of liberty.

In X (Court of Protection Practice), Re [2015] EWCA Civ 599 the Court of Appeal decided that it did not have jurisdiction to determine the appeals in view of the procedure used by the Court of Protection.

Lady Justice Gloster said: “In my judgment, at least so far as the relevant issues are concerned, because the President engaged in an illegitimate approach to the determination of what he and all legal representatives regarded as generic academic issues without any, or any proper, identification of the particular issues which arose in the specific cases before him, he had no jurisdiction to make the determinations which he did.

“In consequence and, with respect, what are merely his opinions in relation to those matters cannot be regarded as authoritative. I am supported in this conclusion by the views of Lord Justice Moore-Bick and Lady Justice Black, with which I agree, that in any event the President's conclusion - that a patient need not be made a party in order to ensure that the proceedings are properly constituted (even though he may be joined as a party at his request) - is not consistent with fundamental principles of domestic law and does not provide the degree of protection required by the Convention and the Strasbourg jurisprudence.”

In relation to the consultative approach suggested by the CoP President, Lady Justice Black meanwhile said: “[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 upon whether he expresses an objection to the form of care that is being provided or proposed. There is too high a risk of slip ups in such a scheme. Article 5 requires a greater guarantee against arbitrariness.”

She added: “[Had] I been in a position to determine the issue in these proceedings, I would have held that in order that deprivations of liberty are reliably subjected to thorough scrutiny, and effective procedural safeguards are provided against arbitrary detention in practice, it is presently necessary for P to be a party in the relevant proceedings.”

Yogi Amin, Head of Public Law at Irwin Mitchell which acted for the appellants, said: “This case revolves around the need to ensure that applications to authorise an individual’s deprivation of liberty are dealt with efficiently given the inevitable strain on resources, but that individuals’ rights are still safeguarded.

"DoL applications all concern vulnerable and incapacitated people. There is a real need to ensure that applications to limit a person’s freedom are given the correct amount of judicial attention, and that individuals have access to the court in order to put forward their views, have access to legal representation, and to object to their deprivation of liberty if necessary.”

He added: “Following this Court of Appeal judgment, it is clear that the individual at the heart of the each DoL application must always be made a part of the proceedings themselves. This may mean many local authorities will have to review their existing authorisations and ensure that the individual in question is properly represented at the next court review.”

Irwin Mitchell added that it was expected that the Court of Protection Rules Committee would now be asked to produce new guidance on a streamlined process which complied with the observations made by the Court of Appeal.

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