Re X (Deprivation of Liberty) (No 2)  EWCOP 37,  MHLO 98
"I need now to supplement and elaborate what I said in my previous judgment in relation to Questions (7), (9) and (16). For ease of reference I set out those questions again: '(7) Does P need to be joined to any application to the court seeking authorisation of a deprivation of liberty in order to meet the requirements of Article 5(1) ECHR or Article 6 or both? (9) If so, should there be a requirement that P … must have a litigation friend (whether by reference to the requirements of Article 5 ECHR and/or by reference to the requirements of Article 6 ECHR)? (16) If P or the detained resident requires a litigation friend, then: (a) Can a litigation friend who does not otherwise have the right to conduct litigation or provide advocacy services provide those services, in other words without instructing legal representatives, by virtue of their acting as litigation friend and without being authorised by the court under the Legal Services Act 2007 to do either or both …?' These questions require consideration of a number of issues which I take in order, formulating each of these issues in the form of a question. ..."
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
MENTAL DISORDER — Incapable person — Deprivation of liberty — Requirement to periodically review deprivation of liberty authorisations — Guidance on approach to “streamlined” process required to deal with increased case load — Human Rights Act 1998, Sch 1, Pt I, art 5 — Mental Capacity Act 2005, s 64(5) (as inserted by Mental Health Act 2007, s 50(7), Sch 9, para 10(4)) — Court of Protection Rules 2007 (SI 2007/1744), rr 73(4), 141(1)
In re X and others (Court of Protection Guidance: Deprivation of Liberty Cases) (No 2)
!;  WLR (D) 434
Ct of Protection: Sir James Munby P: 16 October 2014
Further guidance on the approach to a “streamlined” process to deal with all deprivation of liberty (“DoL”) cases in a timely but just and fair way which was compliant with article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Sir James Munby P, sitting in the Court of Protection, gave guidance in a reserved judgment on the practical and procedural implications for the Court of Protection of the likely large increase in its case load which would follow in consequence of the Supreme Court’s decision in Surrey County Council v P (Equality and Human Rights Commission intervening)!, which had determined that a mentally incapacitated person (“P”) had the same rights to liberty as everyone else, and if their living arrangements would amount to a deprivation of liberty of a capacitous person they were also a deprivation of liberty of the incapacitated person, who was therefore entitled to periodic independent checks to ensure that the deprivation of liberty remained justified in his or her best interests.
SIR JAMES MUNBY P said that it was necessary to supplement and elaborate what had been said in In re X (Court of Protection Guidance: Deprivation of Liberty Cases)!;  WLR (D) 376, in relation to questions (7), (9) and (16) of the 25 questions set out in that judgment. With regard to question (7) “Did P need to be joined to any application to the court seeking authorisation of a deprivation of liberty in order to meet the requirements of article 5(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms or article 6 or both”, (i) as a matter of principle, and specific legislative provisions apart, 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. That was analogous to the position in welfare proceedings relating to children and the basis was no doubt to be found in the special nature of such proceedings which were not like ordinary civil actions: see In re B (JA) (An Infant)  Ch 1112, 1117. (ii) Nor was there any requirement under the Convention for P to be a party to welfare proceedings, in particular, proceedings relating to deprivation of P’s liberty, although article 5(4) entitled P to “take proceedings”. Article 6 required that P be able to participate in the proceedings in such a way as to enable P to present his case “properly and satisfactorily”: see Airey v Ireland (1979) 2 EHRR 305, para 24. More specifically, referring to article 5, it was essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he would not have been afforded “the fundamental guarantees of procedure applied in matters of deprivation of liberty”: see Winterwerp v The Netherlands (1979) 2 EHRR 387, para 60. At present, the matter was regulated by rule 73(4) of the Court of Protection Rules 2007 which, without making any different provision for deprivation of liberty cases, provided: “Unless the court orders otherwise, P shall not be named as a respondent to any proceedings.” That was complemented by rule 74, which provided that P: “shall be bound by any order made or directions given by the court in the same way that a party to the proceedings is bound.” Whether rule 73(4) should be retained in deprivation of liberty cases (or, indeed, more generally) was, of course, a different question. (iii) There was no obstacle to P participating and being represented in proceedings in the Court of Protection without being joined as a party; the practice in wardship had long been that where the ward had formed an association, considered to be undesirable, with another person, that other person, although entitled to be heard, should not be made a party to the proceedings: see now paragraph 3.1 of Practice Direction 12D: Inherent Jurisdiction (Including Wardship) Proceedings, supplementing FPR Pt 12. If P participated other than as a party, there was no need for a litigation friend.
Regarding question (9), “should there be a requirement that P … must have a litigation friend?”, the general principle was long established, and hardly required citation of authority, that in welfare proceedings, as in any other kind of litigation, a child or incapacitated adult could participate as a party only if represented by a litigation friend. Although there was no fundamental principle in domestic law which dictated that P, if a party, must have a litigation friend and the question was ultimately one going to the practice of the particular court or tribunal, at present rule 141(1) of the 2007 Rules required P, if a party, to have a litigation friend. That requirement was compliant with, but not mandated by, the Convention: see RP v United Kingdom  1 FLR 744Not on Bailii!. The Convention requirement was to ensure that P’s interests were properly represented and that did not, of itself, require the appointment of a litigation friend.
With regard to question (16): “if P or the detained resident required a litigation friend, then: (a) could a litigation friend who did not otherwise have the right to conduct litigation or provide advocacy services provide those services, without instructing legal representatives, by virtue of their acting as litigation friend and without being authorised by the court under the Legal Services Act 2007 to do either or both”, the long established practice was that a litigation friend (i) was not a party to the proceedings (and therefore could not in the absence of specific rules be ordered to give discovery (disclosure) of documents), (ii) was not entitled to sue or be heard in person on behalf of the person under disability and (iii) was liable to the defendant for the costs of the proceedings. The question was whether (ii) was still in place. There was nothing to indicate that that was some fundamental, immutable rule. In his Lordship’s view the matter was correctly stated by Brooke LJ in Gregory v Turner!, para 64: a litigation friend did not have to act by a solicitor and could conduct the litigation on behalf of P.
Each of the matters addressed were within the proper ambit of the ad hoc non-statutory committeee (“the committee”) set up to review the 2007 Rules and associated practice directions and forms. They were all matters that could properly be regulated by the 2007 Rules and all required urgent consideration by the committee, both as a matter of principle and also to achieve the necessary clarity. Some matters might also merit consideration by both the Civil Procedure Rules Committee and the Family Procedure Rules Committee. It was essential that where the issue concerned P’s deprivation of liberty the Court of Protection’s processes were rigorous, so that the circumstances of the individual case were subjected to the strict scrutiny demanded by the Convention. But the need to meet that challenge could not be allowed to lead to a system of technical requirements which might, in the real world, operate to deny P the speedy access to a judicial determination which was the very essence of what was required. The committee would have to consider how best to craft a process which, while it met the demanding requirement of the law, also had regard to the realities consequent upon (a) the legal aid regime and (b) the exposure of a litigation friend to a costs risk.
Appearances: 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 filed written submissions on behalf of Mind, intervening.
Reported by: Jeanette Burn, Barrister.
© 2013. The Incorporated Council of Law Reporting for England and Wales.