The recent decision in Re KT & Others confirms that, in non-contentious Deprivation of Liberty welfare cases where there is no Rule 3A representative, the appointment of a Court of Protection visitor to prepare a section 49 Mental Capacity Act report in respect of P would be sufficient to safeguard P’s rights under Article 5 of the European Convention on Human Rights.
A brief summary
In Re KT Mr Justice Charles considered four test cases from the 300 plus Re X applications (now COPDOL11 applications) that had been stayed following his decision in Re JM (2016) where no family member or friend was available for appointment as P’s Rule 3A representative (now Rule 1.2(5)).
In Re JM it was also decided to join the Ministry of Justice and the then Department of Health (now Department of Health and Social Care) as parties – this was done as the Government is primarily responsible for providing the resources needed to enable the Court of Protection to adopt an Article 5 compliant and fair procedure.
In 2017 local authority applicants in stayed Re X cases received letters from the Government Legal Department (GLD) confirming that Ministers had agreed to provide funding to HM Courts & Tribunals Service to enable greater use of visitors by the Court of Protection who report to the court in the absence of a Rule 3A representative.
Mr Justice Charles was disappointed with the GLD’s approach.
He criticised their letters for being effectively "devoid of (a) any detail of what the extra funding to support the appointment of visitors would be and so in how many applications (and reviews) this would be a practical option for the court, and (b) any evidence concerning, or any explanation of how, the appointment of a professional advocate identified by an applicant local authority had become (or always had been) a practically available option in a significant number of cases."
However, he accepted that the appointment of a visitor would be sufficient to protect P’s Article 5 procedural rights (as had been identified in Re NRA & others) and would represent a fair and Convention compliant procedure – although only a temporary solution.
Appointment of a visitor
Mr Justice Charles has helpfully set out draft directions which can be adopted in cases where a visitor is proposed.
While he accepted that the appointment of visitor to prepare a section 49 report would provide a fair and compliant Convention procedure – that does not mean that the court should not be informed if a Rule 3A representative was available. Then, it would be up to the court to decide whether that person would be a better option, for example due to a continuing connection with P and the reliance that the court could place on their independence and expertise.
Equally he accepted that there are advantages and disadvantages to the appointment of a family member over a visitor.
The conundrum – Rule 3A representative versus visitor option?
Although Mr Justice Charles stated (at paragraph 81 of his judgment) that the appointment of a professional who could act independently as a Rule 3A representative and carry out regular reviews of P’s placement and care package on the ground would, in most cases, be likely to have advantages over the appointment of a visitor because it would provide a better basis of and for review and equivalent expertise and independence to that provided by a visitor, he did adopt a pragmatic approach to the Re X applications and the dilemma where there is no family member or friend available and the only options are visitor or a professional representative who could act as a Rule 3A representative.
He went on to state (see paragraph 84 of the judgment) that, if he had to choose, he would select a visitor.
In respect of the resources needed he criticised the Secretary of State for taking “an avoidant and unconvincing “pass the parcel” approach”.
The way ahead
This decision will be welcome news for local authorities but at best is only a short-term fix – it clearly will not provide or release in itself adequate resource to review and progress all those cases that have been stayed pursuant to Re JM.
Mr Justice Charles makes it clear that “absent further resources being provided, another backlog of these cases will build up or if that is avoided they will create significant delays in other types of applications to the COP.”
Do get in touch with Jill Weston or Molly Sanghera if you require support with Re X cases and representatives or other Court of Protection matters.