Those of you who are commissioning care packages in the community which amount to a deprivation of liberty will be aware of the need to make an application to the Court of Protection for an order approving the deprivation. As part of this process, the court is asking for a representative for the patient. This is usually a family member. However, the recent case of Re VE highlighted the uncertainty for family members over this role. In response, Mr Justice Charles has issued an explanatory note.
VE was one of the cases listed before Mr Justice Charles and is the subject of his judgment in the case of Re JM & Others (DoL procedural requirements). The JM proceedings related to people in the community for whom a Re X DoLS application was required who were the "un-befriended" within the proceedings.
The status of a protected person (the subject of proceedings) who is referred to as ‘P’ has been debated at length by the judges of the Court of Appeal who indicated that ‘P’ should be a party within the proceedings. This was a departure from the judgment of Lord Justice Munby in the Re X case. Mr Justice Charles was tasked with finding a way to ensure that ‘P’ was properly represented in proceedings following the Court of Protection cases. Rather than join them as a party, Mr Justice Charles used a change in the Code of Practice rules (from 1 April 2015) which allowed for the appointment of a new category of representatives for ‘P’ in proceedings, a Rule 3A representative. These representatives can be a family member or friend. The role of the representative is to put the wishes of ‘P’ forward and critically review the pros and cons of the care and support package, comparing it with other available options, and (if appropriate) proposing changes to the responsible commissioner.
It had been reported, and was relevant to the case of VE, that family members and friends were finding it difficult to understand what their role as a Rule 3A representative involved in DoLS proceedings and this made some of them reluctant to take on the role or get involved in discussions about it. The court agreed that the role should be better explained and suggested the explanatory note be considered by the Court of Protection and Rules Committee so that guidance could be provided on a statutory level to those who are considering taking on the role.
The judgment is important to both providers and commissioners involved in decisions which might result in a court application for a DoLS, as it highlights the need to explain the role of a Rule 3A representative. It also raises the need for thorough care plans to be communicated to those involved in ‘P’s’ care.
We will keep you informed and let you know whether the explanatory note is endorsed by the Rules Committee.