Independent legal representation must always be provided to vulnerable people in deprivation of liberty hearings, the Court of Protection has held.
Ruling in JM & Ors [2016] EWCOP 15, Mr Justice Charles, vice-president of the court, said the government had a responsibility to ensure that each individual who lacks mental capacity and whose liberty is being considered by the court has appropriate representation when their case is considered.
He held that all such cases will be adjourned until a workable solution is found, in future. This means that large numbers of such cases, concerning what are often crucial health and welfare decisions, will now be pending indefinitely.
The five test cases of JM & others concerned deprivation of liberty applications where no appropriate [Rule 3A] representative could be found due to lack of resources and other reasons.
Pressure on resources has increased since a landmark 2014 Supreme Court, P v Cheshire West [2014] UKSC 19, which lowered the threshold for cases to go to the Court of Protection, increasing the number of people whose restrictions required the Court’s authorisation.
In his judgment, Charles J explicitly singled out for criticism the Secretaries of State for Justice and Health, stating: “I am sorry to have to record that in my view the stance of the Secretary of State (through officials at the MoJ and the DoH) in these proceedings has been one in which they have failed to face up to and constructively address the availability in practice of such Rule 3A representatives and so this aspect of the issues and problems created for the COP (and others) by the conclusion in Cheshire West.
“Rather they have sought to avoid them by trying to pass them on to local government on an approach based on the existence of an accepted possibility rather than its implementation in practice.”
Later in the judgment, he criticised the Secretaries of State for an “avoidant approach that prioritises budgetary considerations over responsibilities to vulnerable people”.
Jonathan Smithers, president of the Law Society, which intervened in the case, says: “These cases can be about enforced medical treatment, restraint, limits on people’s movements or on visitors.
“When a vulnerable person doesn't have friends or family to represent them during a decision to restrict their liberty, it is vital that person is able to participate in the decision-making process. If this is not possible then they must have a legal representative to protect their rights as well as their health and general welfare.”
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