Following a previous judgment on questions of law in deprivation of liberty cases involving adults who lacked capacity, the Court of Protection supplemented and elaborated on some of those questions.
Re X and others (Deprivation of Liberty) (Number 2): Court of Protection (Sir James Munby): 16 October 2014
Court of Protection – Practice – Application to the court – Court previously answering questions of law – Court supplementing and elaborating on questions regarding deprivation of liberty of adults who lacked capacity – Whether patient being required to be party to welfare proceedings under domestic or European law
The court previously handed down judgment on questions of law in deprivation of liberty cases involving adults who lacked capacity (see [2014] All ER (D) 43 (Aug)). The present proceedings concerned the supplementation and elaboration on some of those questions.
The issues for determination were: (i) whether, as a matter of principle, and specific legislative provisions apart, there was any requirement in domestic law for a patient, P, to be a party to welfare proceedings; (ii) whether there was any requirement under the European Convention on Human Rights for P to be a party to welfare proceedings, in particular, proceedings relating to deprivation of P’s liberty; (iii) whether, as a matter of principle, and specific legislative provisions apart, there was any obstacle to P participating and being represented in proceedings in the Court of Protection without being joined as a party; (iv) whether, assuming that P was a party, he was required to act by a litigation friend; and (v) whether a litigation friend who did not otherwise have the right to conduct litigation or provide advocacy services could provide those services for P, in other words, without instructing legal representatives.
The court ruled: (1) There was no requirement in domestic law for P to be a party to welfare proceedings, whether in the Family Division or in the Court of Protection. There was no distinction to be drawn between the authorities on welfare proceedings regarding children and cases involving adults who lacked capacity (see [4], [9] of the judgment).
S (infant), Re [1950] 2 All ER 159 applied; Scott (otherwise Morgan) v Scott [1911-13] All ER Rep 1 considered; B (J A) (an infant), Re [1965] 2 All ER 168 considered; F (a minor), Re [1982] 1 All ER 321 considered; RC v CC and another [2014] EWCOP 131 considered; G (Adult), Re [2014] All ER (D) 27 (May) considered.
(2) There was no requirement under the convention for P to be a party to welfare proceedings, in particular, proceedings relating to deprivation of P’s liberty. So long as the convention’s demanding standards were met, and they could be met without P being joined as a party, there was, as a matter of general principle, no requirement, whether in domestic law or under the convention, for P to be a party (see [11], [14], [15] of the judgment).
(3) There was no obstacle to P participating and being represented in proceedings in the Court of Protection without being joined as a party. If P was participating other than as a party, there was no need for a litigation friend (see [19], [21] of the judgment).
(4) There was no fundamental principle in domestic law which dictated that P, if a party, had to have a litigation friend. The question was ultimately one going to the practice of the particular court or tribunal (see [24] of the judgment).
(5) A litigation friend did not have to act by a solicitor and could conduct the litigation on behalf of P. A litigation friend who did not otherwise have a right of audience required the permission of the court to act as an advocate on behalf of P (see [34] of the judgment).
Gregory v Turner; R (on the application of Morris) v North Somerset Council [2003] 2 All ER 1114 applied.
Alexander Ruck Keene and Benjamin Tankel for the Official Solicitor as advocate to the court; Joanne Clement for the secretary of state for health and the lord chancellor and secretary of state for justice; Stephen Cragg QC for the Law Society of England and Wales; Alison Ball QC and Andrew Bagchi for the Association of Directors of Adult Social Services; Neil Allen for Cheshire West and Chester Council, Surrey County Council and Northumberland County Council; Michael Dooley for Cornwall Council; Bethan Harris for Worcestershire County Council; Conrad Hallin for Sunderland City Council; Natalia Perrett and Emily Reed for Barnsley Metropolitan Borough Council; Simon Burrows for Rochdale Metropolitan Borough Council; Michael Mylonas QC for Surrey Downs Clinical Commissioning Group; Jonathan Auburn for NHS Sheffield Clinical Commissioning Group; John McKendrick for Nottinghamshire Healthcare NHS Trust; Jonathan Butler for KW (a patient); Katie Scott for AS and GS (patients); Joseph O’Brien for PMLP (a patient); Ian Wise QC, Martha Spurrier and Alison Fiddy by way of written submissions for Mind.
