NRA & Ors, Re [2015] EWCOP 59 (25 September 2015)

NRA & Ors, Re [2015] EWCOP 59 (25 September 2015)

The Court held that, in non-contentious welfare applications to authorise deprivation of liberty under the Mental Capacity Act 2005, it is not mandatory for P to be joined as a party in all cases. The procedural safeguards required by Article 5 ECHR and common law fairness can be met by a proportionate, streamlined process where P is not always a party, provided there are effective checks and the process is practical, effective, and speedy. The appointment of an independent litigation friend (such as the Official Solicitor) for P in every case is not required where a suitable family member or friend is available, and the mandatory instruction of a solicitor or an oral hearing is not...

Citation
[2015] EWCOP 59
Parties
Subject of Proceedings (p): NRA, HR, ML, MJW, VS, EJG, MT, DPW, NR, LM; Applicant Local Authorities: London Borough of Hillingdon (SV), London Borough of Redbridge (HR), London Borough of Islington (MT), Suffolk County Council (EJG, MT), Lancashire County Council (LM, NR); Applicant Local Authorities: Hampshire County Council (NRA), Hertfordshire County Council (MJW, DPW); Intervener: Secretary of State for Justice; Party/intervener/litigation Friend: Official Solicitor; Intervener (written Submissions Only): Law Society of England and Wales
Jurisdiction
England and Wales
Judgment Date
25 September 2015
Procedural Posture
Court of Protection Welfare Applications (test Cases) / Judgment on Procedural Directions and Party Status
Outcome
Directions given; streamlined procedure for non-contentious deprivation of liberty cases endorsed; P need not be joined as a party in all cases.
Legal Topics
Deprivation of Liberty, Best Interests Test, Litigation Friend Appointment, Legal Aid, Procedural Safeguards, Article 5 ECHR, Article 14 ECHR, Court of Protection Procedure
Mental Capacity Law Human Rights Law Public Law Deprivation of Liberty Best Interests Test Litigation Friend Appointment Legal Aid Procedural Safeguards +3 more

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Parties

NRA, HR, ML, MJW, VS, EJG, MT, DPW, NR, LM

Subject of Proceedings (p)

London Borough of Hillingdon (SV), London Borough of Redbridge (HR), London Borough of Islington (MT), Suffolk County Council (EJG, MT), Lancashire County Council (LM, NR)

Applicant Local Authorities

Hampshire County Council (NRA), Hertfordshire County Council (MJW, DPW)

Applicant Local Authorities

Secretary of State for Justice

Intervener

Official Solicitor

Party/intervener/litigation Friend

Law Society of England and Wales

Intervener (written Submissions Only)

Procedural Posture

Court of Protection Welfare Applications (test Cases) / Judgment on Procedural Directions and Party Status

Legal Issues

  1. 1 Whether P (the subject of proceedings) must be joined as a party in all welfare applications authorising deprivation of liberty under the Mental Capacity Act 2005
  2. 2 What criteria apply to the appointment of P's litigation friend (independence, family/friend eligibility)
  3. 3 Whether a litigation friend without rights of audience can conduct proceedings without a solicitor

Ratio Decidendi

The Court held that, in non-contentious welfare applications to authorise deprivation of liberty under the Mental Capacity Act 2005, it is not mandatory for P to be joined as a party in all cases. The procedural safeguards required by Article 5 ECHR and common law fairness can be met by a proportionate, streamlined process where P is not always a party, provided there are effective checks and the process is practical, effective, and speedy. The appointment of an independent litigation friend (such as the Official Solicitor) for P in every case is not required where a suitable family member or friend is available, and the mandatory instruction of a solicitor or an oral hearing is not...

Court Disposition

Directions given; streamlined procedure for non-contentious deprivation of liberty cases endorsed; P need not be joined as a party in all cases.

Orders

  • In non-contentious welfare applications for deprivation of liberty, P need not be joined as a party in all cases.
  • Where a suitable family member or friend is available, they may act as litigation friend for P.