JM & Ors, Re Mental Capacity Act 2005 [2016] EWCOP 15 (10 March 2016)

JM & Ors, Re Mental Capacity Act 2005 [2016] EWCOP 15 (10 March 2016)

In non-contentious deprivation of liberty welfare order applications where there is no family member or friend to act as Rule 3A representative, the Court of Protection cannot lawfully proceed unless there is a practically available resource of professional Rule 3A representatives or an alternative procedure that meets the minimum procedural safeguards required by Article 5 ECHR and common law fairness. The responsibility for providing such a resource falls on central government (Secretary of State), not local authorities, absent a statutory duty. In the absence of such a resource, applications must be stayed pending identification of a lawful procedure.

Citation
[2016] EWCOP 15
Parties
Applicants: Gateshead Council Corporate Services and Governance (re JM); London Borough of Tower Hamlets Legal Services (re AMY); Hill Dickinson LLP (re JG); Manchester City Council Legal Services Division (re MM); Blackburn with Darwen Borough Council (re VE); Respondents: Secretary of State for Health and Secretary of State for Justice; Interested Party: Official Solicitor; Intervener: Law Society of England and Wales
Jurisdiction
England and Wales
Judgment Date
10 March 2016
Procedural Posture
Court of Protection Welfare Order Applications (deprivation of Liberty) / Judgment Following Test Cases on Procedural Safeguards and Representation
Outcome
Applications stayed pending identification of a practically available procedure to meet minimum procedural requirements; in VE's case, a friend appointed as Rule 3A representative and directions given.
Legal Topics
Deprivation of Liberty Safeguards, Article 5 ECHR, Procedural Fairness, Representation of Incapacitated Persons, Legal Aid, Court of Protection Procedure
Mental Capacity Human Rights Administrative Law Deprivation of Liberty Safeguards Article 5 ECHR Procedural Fairness Representation of Incapacitated Persons Legal Aid +1 more

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Parties

Gateshead Council Corporate Services and Governance (re JM); London Borough of Tower Hamlets Legal Services (re AMY); Hill Dickinson LLP (re JG); Manchester City Council Legal Services Division (re MM); Blackburn with Darwen Borough Council (re VE)

Applicants

Secretary of State for Health and Secretary of State for Justice

Respondents

Official Solicitor

Interested Party

Law Society of England and Wales

Intervener

Procedural Posture

Court of Protection Welfare Order Applications (deprivation of Liberty) / Judgment Following Test Cases on Procedural Safeguards and Representation

Legal Issues

  1. 1 What are the minimum procedural safeguards required in non-contentious deprivation of liberty welfare order applications where there is no family member or friend to act as Rule 3A representative?
  2. 2 Is the appointment of professional Rule 3A representatives a practically available solution?
  3. 3 Who bears responsibility for providing resources to meet Article 5 and common law fairness requirements in such cases?

Ratio Decidendi

In non-contentious deprivation of liberty welfare order applications where there is no family member or friend to act as Rule 3A representative, the Court of Protection cannot lawfully proceed unless there is a practically available resource of professional Rule 3A representatives or an alternative procedure that meets the minimum procedural safeguards required by Article 5 ECHR and common law fairness. The responsibility for providing such a resource falls on central government (Secretary of State), not local authorities, absent a statutory duty. In the absence of such a resource, applications must be stayed pending identification of a lawful procedure.

Court Disposition

Applications stayed pending identification of a practically available procedure to meet minimum procedural requirements; in VE's case, a friend appointed as Rule 3A representative and directions given.

Orders

  • MoJ and DoH joined as parties (unless assurance given, then only MoJ)
  • Parties invited to identify suitable Rule 3A representative or alternative available procedure