Welfare orders concerning deprivation of liberty.

Judge: Mr Justice Charles
Citation: [2015] EWCOP 59

Summary

In this case, Mr Justice Charles, the Vice President of the Family Division considered that the three things that needed to be done in any welfare case were to:

i. Elicit P’s wishes and feelings and make them known to the Court without causing P unnecessary distress;
ii. Critically examine, with P’s best interests in mind, and with a detailed knowledge of P, the pros and cons of the proposed care package and whether it was the least restrictive available option;
iii. Keep the implementation of the care package under review and raise points relating to it and to changes in P’s behaviour or health.

In doing so Charles J drew on his long standing experience in the Family Division to conclude that family members, particularly those who had cared for P and fought their corner for a substantial amount of time, would in general be the best placed to fulfil the three tasks above. With that being the case, he considered that the means exercised by the family member made no difference, thus they could advocate in their own right, do so as a litigation friend for P, or act as P’s Rule 3A representative.

In light of this conclusion, Charles J had the unenviable task of departing from the vigorous logic of a unanimous Court of Appeal in Re X that, for the reasons given in that case, Article 5 required the joinder of P as a party in all cases involving a deprivation of liberty. Charles J did so by holding that had been a failure by the Court of Appeal in Re X to properly appreciate that, first, joining P as a party in all cases was unworkable in practice and so did not provide the practical and effective procedural safeguard sought and, second, that welfare cases in the Court of Protection were to be distinguished from all other deprivation of liberty cases in that the determinative issue in such cases is not whether P should be deprived of their liberty, but whether a particular arrangement is the least restrictive option in their best interests.

The issue for the Court in Re NRA concerned the problem with which the Court of Protection continued to face following the judgment made in Re X. As such a system was still needed in which P had Article 5-compliant procedural safeguards in cases involving a deprivation of liberty; but those safeguards had not to be not so onerous that they diverted resources away from frontline services, caused unnecessary interventions in the lives of P and those who care for P, or resulted in so much delay that they no longer provided a practical and effective procedural guarantee after all.

Charles J considered that it would be an improvement to the forms if they required the key provisions of the care package to be summarised, and the questions currently asked in the form to be answered by reference to that summary. The summary should in particular include the level of supervision (1:1, 2:1 etc), the periods of the day when supervision is provides, the use or possible use of sedation or restraint, the use of assistive technology, and what would happen if P were to try to leave. In his opinion the form was also in include a further 14 sub criteria. He also extended the application of Re X in considering the outcome of situations where no family member was available. In recognising the need for some degree of independent scrutiny of the local authority’s arrangements, Charles J had considered that where there is a scarcity of such scrutiny the essential procedural safeguards for P would probably be absent.

His solution, ultimately, is that such scrutiny is to be provided by the Courts. Judges considering such applications should observe the absence of a family member, and seek instead to obtain further (independent) information by ordering s.49 reports and making witness summonses.

Comment

We appreciate the concerns expressed by Charles J and his attempt to provide a practical solution to the logistical difficulties that the judgment of Cheshire West and Chester Council v P and another (Same intervening) [2014] UKSC 19 [2014] AC 896 has caused. However his judgement is heavily policy driven and raises the question as to whether the Court is the best placed body to make policy decisions.

Whist Re NRA has led to a reintroduction of the Re X process, the extent of this modification remains unclear. Given the explicit differences of interpretation between the Court of Appeal in Re X and Charles J here, the question of whether P should be joined as a party remains wide open. It is therefore unlikely that Re NRA is to be the last discussion on a case of this nature.