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Home > Judgments > 2008 archive

GJ NJ and BJ (Incapacitated Adults) [2008] EWHC 1097 (Fam)

Judgment concerning the review structure to be implemented involving an incapacitated adult who had been deprived of his liberty by court order.

The subject of the proceedings had long standing difficulties and, in an earlier judgment, Munby J had concluded that he lacked the capacity “to litigate, to determine where to reside and when it is safe and/or appropriate for him to leave his placement, and to decide on contact with others”. Munby J also made a declaration that it was lawful for the subject to continue to reside in his current placement although it was accepted in recital that this care plan involved a necessary deprivation of his liberty. Accordingly, in line with Article 5 of the ECHR, the court must make arrangements for review.

In this judgment considers the statutory and human rights issues arising when considering how to manage such reviews. He first concludes that he is operating under the court’s inherent jurisdiction notwithstanding the imminent introduction of statutory powers under the Mental Capacity Act 2005. He then sets out, in an “indicative rather than definitive” manner, what elements he considers that the review arrangements should contain and considers the role of the Official Solicitor. He then orders two further Court reviews and internal reviews to be carried out every 8 – 10 weeks with liberty to apply to the court if needs be. By the time of the last court review scheduled for June 2009, Munby speculates that the relevant provisions of the 2005 Act may be in force so that consideration can be given to transferring the case to the Court of Protection.   
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The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the various members of the family must be strictly preserved

Neutral Citation Number: [2008] EWHC 1097 (Fam)
Case No: 7MA90621
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MANCHESTER DISTRICT REGISTRY
(In Private)

The Civil Justice Centre
Vernon Street
Liverpool L2 2BX

Date: 16 May 2008

Before :

MR JUSTICE MUNBY
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Between :

In the matter of GJ NJ and BJ (Incapacitated Adults)

SALFORD CITY COUNCIL (Claimant)

- and - 

(1) GJ;(2) NJ; (3) BJ (by their respective litigation friends) (Defendants)

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Mr Simon Crabtree (instructed by Salford City Council) for the Claimant (local authority)
Mr Joseph O’Brien (instructed by Stephensons Solicitors LLP) for the Third Defendant (BJ)
The other parties were not involved in the issue to which this judgment relates

Hearing dates: 5-6 February 2008 (written submissions lodged on 4 and 20 March 2008)
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Judgment
Mr Justice Munby :
1. These are proceedings in respect of GJ, NJ and BJ brought by the local authority under the inherent jurisdiction of the court with regard to incapacitated adults.

2. The matter which I address in this judgment – an important issue relating to the appropriate safeguards to be put in place when the court authorises the placement of an incapacitated adult in circumstances engaging Article 5 of the Convention – relates solely to BJ.

The background
3. The family history is complex and the involvement of the local authority longstanding. But for present purposes I can be brief.

4. NJ, who was born on 21 February 1978, and BJ, who was born on 4 March 1986, are related through adoption, their adoptive father being GJ, who was born on 28 February 1946. Their adoptive mother, VJ, died in 2005. The incapacities which unhappily afflict both NJ and BJ are of long standing. GJ’s current difficulties are the result of a severe stroke which he suffered in June 2007.

5. The proceedings were issued on 13 June 2007 and in accordance with case management directions given by Ryder J on 19 June 2007, 27 September 2007 and 26 November 2007 came on for hearing before me on 5 February 2008. Since the only matter with which I am currently concerned relates to BJ, I deal only with him.

6. By the time the case was opened before me there was properly, in the light of all the expert and other evidence, a very substantial degree of consensus between the relevant parties. I made declarations that BJ lacks capacity, inter alia, to litigate, to determine where to reside and when it is safe and/or appropriate for him to leave his placement, and to decide on contact with others. I also made a declaration that it is lawful and in BJ’s best interests for him to continue to reside in his current placement, which I shall refer to as MH.

7. The order contained a recital that the local authority accepted for the purposes of the proceedings that implementing the care plan it had devised for BJ, and which I approved, involves a deprivation of his liberty. In my judgment that concession was correctly made: see JE v DE (by his litigation friend the Official Solicitor, Surrey County Council and EW [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150.

8. In these circumstances the order also contained declarations that:

“it is lawful and in BJ’s best interests that whilst he continues to be a resident at MH and pending future reviews that the reasonable and proportionate measures set out in the care plan and risk assessment dated November 2007 (including those measures which amount to a deprivation of liberty) be taken to prevent BJ leaving;

it is lawful and in BJ’s best interests that reasonable and proportionate measures as set out in the care plan … (including those measures which amount to a deprivation of liberty) be in place to prevent a risk of harm to himself and/or to others;

it is lawful and in BJ’s best interests for the [local authority] to use reasonable and proportionate measures to regulate when and in what circumstances BJ may have contact with family, friends and acquaintances and in the case of [GJ] permission to refuse such contact.”

9. The references to “reasonable and proportionate measures” are to be noted. That, in my judgment, is the standard by which such measures are to be assessed and justified, just as, in my judgment, the particular measures contemplated in the present case in relation to BJ were indeed reasonable and proportionate in the light of all the evidence.

10. In relation to the deprivation of BJ’s liberty, the order went on to provide both for a series of interim reviews by the local authority in conjunction with the Official Solicitor, BJ’s litigation friend, and for a judicial determination as to the appropriate review structure for the future. In respect of that matter, the order went on to provide for the lodging sequentially of skeleton arguments and relevant supporting materials by counsel for the Official Solicitor, Mr Jospeh O’Brien, and counsel for the local authority, Mr Simon Crabtree.

11. The time table I had set slipped a little, and in the event I received the very helpful skeleton arguments that Mr O’Brien and Mr Crabtree had prepared on, respectively, 4 and 20 March 2008. I am grateful to both of them for the trouble they have taken and apologise for the subsequent delay in giving judgment.

12. The order had contemplated that I might require additional oral submissions, but in the event this has proved not to be necessary. Accordingly, and as contemplated by the order, I now hand down judgment on the issue I have identified, namely the appropriate review structure to be put in place for so long as BJ remains at MH.

The legal landscape
13. Anyone familiar with this branch of the law will recognise that the problem with which I am concerned arises out of the so-called Bournewood gap – see R v Bournewood Community and Mental Health NHS Trust ex p L [1999] 1 AC 458, HL v United Kingdom (2004) 40 EHRR 761 and JE v DE (by his litigation friend the Official Solicitor, Surrey County Council and EW [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150 – and that the particular issue before me is one that I touched on in Re PS (Incapacitated or Vulnerable Adult) [2007] EWHC 623 (Fam), [2007] 2 FLR 1083. No-one has suggested that Re PS was wrongly decided and the opportunity afforded to me for subsequent reflection gives me no reason to reconsider what I there said.

14. I need not rehearse what I said in Re PS. As will be appreciated, the issue with which I am here concerned turns in the final analysis upon Article 5(4) of the Convention, which provides that:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

15. Article 5(4) has to be applied in the light of the Strasbourg jurisprudence to be found set out in Winterwerp v The Netherlands (1979) 2 EHRR 387 and in HL v United Kingdom (2004) 40 EHRR 761. I summarised this in Re PS at para [20]:

“our domestic law must give effect to the principle that an individual cannot be deprived of his liberty on the basis of unsoundness of mind unless three minimum conditions are satisfied: he must reliably be shown to be of unsound mind; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder.”

I continued:

“Art 5(4) provides the right to an individual deprived of his liberty to have the lawfulness of that detention reviewed by a court. In the case of someone deprived of his liberty on the ground of unsoundness of mind, there are two aspects to this (Winterwerp at para 55, HL at paras 135, 140):

(a) First, the lawfulness of the detention has to be reviewed not merely in the light of any domestic legal requirements but also in the light of the text of the Convention, the general principles embodied in the Convention and the aim of the restrictions permitted by Art 5(1)(e). Thus the review must be wide enough to bear on those conditions which are essential for the lawful detention of a person on the ground of unsoundness of mind, in particular with a view to ascertaining whether there still persists unsoundness of mind of a kind or degree warranting compulsory confinement.
(b) Secondly, given the very nature of the deprivation of liberty under consideration in cases within Art 5(1)(e), there must be a review of the lawfulness of the detention ‘at reasonable intervals’. Domestic law must provide ‘speedy’ and ‘periodic control’ at ‘reasonable intervals’.”

The first of these two requirements goes, as will be appreciated, to the nature and intensity of the necessary review, the second to the frequency of the reviews.

16. There are two further passages in Re PS to which I should refer. The first is at para [23] where I indicated that:

“Any order authorising detention must contain provision for an adequate review at reasonable intervals, in particular with a view to ascertaining whether there still persists unsoundness of mind of a kind or degree warranting compulsory confinement.”

The other is at para [26] where, referring to the judgment of Wall J (as he then was) in Re C (Detention: Medical Treatment) [1997] 2 FLR 180, I indicated that:

“Any order directing or authorising … detention … should contain an express liberty to any party (including the [person detained]) to apply to the court for further directions on the shortest reasonable notice.”

17. These are the principles which, in my judgment, have to be applied in the present case.

18. In Re PS at para [23] I observed that the full implications of all this could only be worked out on a case by case basis. This present judgment is part of that process. But for that very reason I should, as Mr Crabtree correctly warns, proceed with caution, not being too prescriptive and not deciding anything more than is necessary for the purposes of the present case. Judges, after all, are not legislators, and this, as it happens, is a matter in relation to which Parliament has decided to intervene, although the new procedures are not yet in place (see further below).

The issues
19. Mr O’Brien, on behalf of the Official Solicitor, submits that it is convenient to consider separately the nature and frequency of the reviews which are required whilst the proceedings are on foot – typically whilst the interim arrangements are regulated by interim declarations – and the nature and frequency of the reviews which are required once the proceedings have otherwise come to an end – typically with the making of ‘final’ declarations. Mr Crabtree agrees, although as will become apparent he sees the distinction rather differently from Mr O’Brien. I also agree. As Mr O’Brien points out, at the interim stage the evidence as to incapacity and best interests may not be complete and the court may be lacking evidence of the less restrictive alternatives which may be available. And there is also the reality that final hearings are in the experience of the Official Solicitor, which accords entirely with my own experience, not usually scheduled to take place within 20 weeks of the first case management conference, and all too often not even then.

20. It is also, as Mr O’Brien points out, important to consider separately the internal reviews which need to be carried out by the person responsible for the deprivation of liberty – here, as in most such cases, the local authority – and the external reviews which need to be carried out by the court.

21. Mr O’Brien helpfully drew my attention to section 50 of the Mental Health Act 2007 (which amends the Mental Capacity Act 2005, in particular by adding new sections 4A, 4B and 16A and a new Schedule A1), to The Mental Capacity Act 2005 – Deprivation of Liberty Safeguards: The draft addendum to the Mental Capacity Act 2005 Code of Practice, to the draft Mental Capacity (Deprivation of Liberty: Eligibility, Selection of Assessors, Assessments, Requests for Standard Authorisations and Disputes about the Place of Ordinary Residence) Regulations 2008 and to the draft Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative) Regulations 2008. He also helpfully referred me to the Department of Health’s briefing sheet, Mental Capacity Act 2005 – Deprivation of liberty safeguards published in November 2007. None of this is yet in force and with the exception of the Mental Health Act 2007 none of it is necessarily yet in its final form.

22. As is well known, the new statutory scheme designed to close the Bournewood gap, and embodied in the amendments to the Mental Capacity Act 2005 enacted by the Mental Health Act 2007, is both detailed and complex. The new Schedule A1 runs to some 48 pages in the Queen’s Printer’s copy of the 2007 Act and the draft addendum to the Code of Practice to some 80 pages. I do not propose even to begin to summarise it all. There is no need to.

23. Mr O’Brien submits that I should have proper regard to the new statutory scheme. Mr Crabtree does not disagree, but counsels me against slavishly following a scheme which is not yet in force and which, as Mr O’Brien accepts, is not yet in its complete final form. I agree with Mr Crabtree’s approach. This is, as he points out, a case brought under and which remains a claim under the inherent jurisdiction.

Reviews – generally
24. The Official Solicitor, I am told, makes his submissions informed by his experience of involvement in a number of cases where claimants have sought declarations authorising the deprivation of an incapacitated adult’s liberty. Mr O’Brien also brings to bear considerable experience of such cases. Their submissions are, in consequence, all the more illuminating. Mr Crabtree’s submissions have also been of great assistance, reflecting the appropriately balanced and sensitive approach of the local authority.

25. Mr O’Brien recognises that inevitably reviews, whether in court or out of court, will be time consuming and expensive. But, he says, the deprivation of a person’s liberty must take precedence over concerns about resource allocation. I agree, though that is not to say that the financial implications are simply to be ignored. As Mr Crabtree points out, local authorities have to operate within the resources allocated to them, and from which they have to meet a number of sometimes competing statutory duties and obligations. The court, as he points out, has to recognise that the world is one of finite resources, though he rightly acknowledges that where deprivation of liberty is at issue resource considerations will be towards the end of a long list of considerations.

26. Before passing to the specifics, there is one point which I must emphasise. Judges, as I have said, are not legislators. And the facts and circumstances of the particular case must always be taken into account when determining the proper form and frequency of reviews. What follows is no more than a guide, tailored in the final analysis to the specific circumstances of BJ’s case. It is indicative rather than definitive, descriptive rather than prescriptive. It must not be read as some rigid template to be applied in every case. Each case is different, often involving very different forensic and family dynamics. Cases which of their very nature are unique are not to be forced onto a Procrustean bed.

Reviews – the interim stage
27. As I said in Re PS at para [23], where the inherent jurisdiction is being invoked the detention must be authorised by the court on application made by the local authority and before the detention commences. The incapacitated adult should be a party to the proceedings and except where urgency precludes his participation the litigation friend should be involved. Usually it is the Official Solicitor who acts as litigation friend in these cases – not least because the local authority which is typically the claimant often finds itself in dispute with the very people who might otherwise act in that role – but it has to be borne in mind that the Official Solicitor is a litigation friend of last resort and that he cannot be compelled to act. That said, if there is no litigation friend when the application for an initial order is made, the court will normally wish to consider inviting the Official Solicitor to participate.

28. In cases where what is sought is not authority for an immediate deprivation of liberty but permission to take such a step on the happening of some future event, the court will no doubt require the local authority to provide a care plan setting out its plan in some detail, just as the court will no doubt wish to spell out in its order with an appropriate degree of precision the precise circumstances in which that step is to be taken.

29. So far as concerns the process of subsequent review by the court, Mr O’Brien suggests that the court should schedule an oral hearing to take place within at most four weeks of the date on which the court first sanctioned a deprivation of liberty. I agree. As he points out, such a hearing will often be a necessity because of the lack, or inadequacy, of evidence at the first hearing (though see what I said on this point in Re PS at para [23]). But the need for a review hearing within four weeks is not, in my judgment, confined to such cases. It is, I think, desirable as a matter of general practice. I should add that in what I would hope is the rare case where an order authorising the deprivation  of liberty has been made without the participation of the Official Solicitor or other litigation friend, the initial review by the court must be sooner – much sooner – than the four weeks which would otherwise be appropriate.

30. Mr Crabtree argues against the need for any automatic review after some fixed period, whether four weeks or some other period, suggesting that such an approach is arbitrary and indeed inconsistent with the requirements of CPR Parts 1.1(2) and 1.4. I agree with Mr Crabtree that, in the final analysis, the decision must always be one for the judge who has made the first order authorising the deprivation of liberty and must always be taken having regard to the circumstances of the particular case. That said, and recognising on the other hand that there may be cases where an earlier review is required, it still seems to me that, as a general practice, and always accepting that a different order may be appropriate in some cases, the first review hearing should follow no later than four weeks after the initial order.

31. Thereafter, Mr O’Brien suggests, further reviews by the court can take place in accordance with a timetable fixed by the judge to reflect what it desirable in the circumstances of the particular case. Usually, no doubt, these reviews will coincide with the further directions hearings or pre trial reviews fixed by the judge. The circumstances of the particular case may, however, require further reviews at other times. As Mr Crabtree submits, it is vital that the Official Solicitor or other litigation friend participates fully in all such hearings. And as he also submits, amongst the important matters to be considered at the pre trial review as part of the general review of where the case has got to and where it is going, is the question of whether or not the interim declaratory relief should be continued.

32. The parties, and the incapacitated adult, should always have liberty to apply, if need be on the shortest reasonable notice: see Re PS at para [26]. Moreover – and this is a point I wish to emphasise – it is then the duty of the court to ensure the listing of the case as a matter of urgency, that is, within a matter of days at most, not weeks and certainly not months. Matters affecting the liberty of the subject traditionally take precedence over all other business, and that principle, enshrined in more spacious days when the lists were not under the intolerable pressures they are today, must be adhered to.

33. During this interim period the local authority should hold regular internal reviews. In practice – and this is a practice which the Official Solicitor supports and which I commend – these are usually held once every four to six weeks. But as Mr O’Brien observes, and I agree, the fact that a review is planned, for example, for a specified date each month, does not obviate the need for an earlier review if, for example (cf paragraph [15] above), there is reason to believe that the person is no longer incapacitated or that it is not in his best interests to be deprived of his liberty or that some less restrictive option may be available.

34. To ensure that these internal reviews are effective and provide proper safeguards for the person who has been deprived of his liberty, it is vital that the local authority sets out as early as possible in the proceedings the dates on which the internal reviews are to be held (a matter which the judge may wish to consider and, if satisfied, approve); that the local authority invites the attendance of the Official Solicitor’s (or other litigation friend’s) representative; and that the local authority provides him in advance of each meeting with up to date information on all matters relevant to the deprivation of the person’s liberty.

Reviews – following the final hearing
35. It is common ground between Mr O’Brien and Mr Crabtree that, even after the final hearing, there should be provision for regular review by the court. I agree. Pointing by analogy to the provisions of paragraph 42 of Schedule A1 to the Mental Capacity Act 2005, Mr O’Brien suggests that, unless circumstances indicate that an earlier review is required (see below), and subject of course to liberty to apply in the meantime, there should be a review at or about (but no longer than) 12 months after the final hearing, and thereafter, subject to any different order made in the meantime, at similar intervals so long as the deprivation of liberty continues. That, says Mr O’Brien, will in principle satisfy the requirements of Article 5(4). I agree.

36. Where, in common with Mr Crabtree, I part company with Mr O’Brien is in relation to the nature and extent of the Official Solicitor’s role following the final hearing. Mr O’Brien’s submissions assume that following the final hearing the litigation will have concluded and with it the role of the Official Solicitor as litigation friend, and that thereafter the Official Solicitor’s role will be very limited. Now that might be so if there was merely a liberty to apply which might never be exercised. But if the final order builds in, as in my judgment it must if Article 5(4) is to be complied with, provision for further regular reviews, even if only at annual intervals, then the litigation has not concluded, albeit that it may be dormant for up to a year at a time, nor, it would seem to me, has the continuing role of the litigation friend.

37. Accordingly it follows, in my judgment, that until such time, the 2007 Act having come into force, as the proceedings have been transferred to the Court of Protection and the various mechanisms under Schedule A1 of the 2005 Act are in force, the Official Solicitor remains, as Mr Crabtree put it, as much a part of the court review process as the local authority. The Official Solicitor is, and unless released by the court remains, the litigation friend. As Mr Crabtree puts the point, and I agree, how can BJ participate in reviews which are fundamental to his rights under both Article 5 and Article 8 unless either the Official Solicitor (absent some other replacement) continues to act as his litigation friend or his rights under Article 6 (and, I would add, under Article 5(4)) are breached? And as Mr  Crabtree observes, Mr O’Brien’s point in relation to resources (see paragraph [25] above) applies as much to the Official Solicitor as to the local authority.

38. Mr O’Brien submits that if this is to be an effective review, meeting the Winterwerp requirements (see paragraphs [15] and [16] above), then the court at each review must consider the issues of both capacity and best interests. Accordingly, he says, the court must be supplied with up to date reports from the independent psychiatrist on the issues of capacity and (where appropriate) best interests and from the independent social worker on the issue of best interests. There should also, he submits, be up to date reports from the person’s appointed social worker and from his or her representative if there is one (see below).

39. I agree that up to date reports are needed, but unless there has been any material change in the relevant circumstances they can be appropriately brief. Much will depend upon the circumstances of the particular case. In the kind of case where the patient’s condition has remained essentially stable for some time and there is no reason to anticipate any significant changes (whether for the better or the worse) within the foreseeable future, then comparatively brief reports may well suffice. In borderline cases or cases where the circumstances are more fluid, then much more detailed reports may be necessary.

40. Mr O’Brien questions whether there is automatic need for an oral hearing of each annual review. I entirely accept that Article 5(4) does not necessitate an oral hearing on every occasion. It must depend upon the circumstances. I am inclined to think that normally it would be appropriate for there to be an oral hearing at the first annual review but that if the position at that stage seems to have stabilised and the circumstances are such that change is unlikely within the next year the next and subsequent reviews can probably take place without an oral hearing. This must always, of course, be subject to the right of any party, or, indeed, of the judge (who has an important role to play in this respect), to require that there should in fact be an oral hearing if it appears, for example, that the evidence requires further investigation or scrutiny (whether by cross-examination or by directing further investigations or assessments) or that there are matters on which the court would be assisted by argument.

41. I would further emphasise that both the Official Solicitor and the detained person’s representative (if there is one) have a vital role to play in each annual review, whether or not it involves an oral hearing. The Official Solicitor in particular is there to examine matters with an independent and questioning mind, giving appropriately anxious scrutiny to the issues referred to in paragraphs [38]-[40] above.

42. Mr O’Brien rightly argues that judicial continuity remains “essential”. That is the word he uses, and that is the word I would endorse. So long as possible and so far as reasonably practicable, every case where a final order has been made authorising a person’s deprivation of liberty should be reserved to the judge who made that order, and the fact that the case is so reserved should be recorded in the order.

43. Mr O’Brien and Mr Crabtree helpfully highlight a number of points which although matters of detail are nonetheless important. With the assistance of their submissions I would formulate these as follows:

i) The preceding order must lay down a clear timetable for what is to be done in the run-up to the review hearing, in particular with a view to ensuring that both the Official Solicitor and the court receive the up-dating material sufficiently in advance of the date fixed for the review (whether in court or on paper) to enable a proper decision to be made as to whether an oral hearing will be required and, even if it is not, to enable all the parties, the Official Solicitor in particular, to prepare for the review. Mr O’Brien suggests a minimum period of 21 days for this purpose. I agree, though suspecting that 28 days will provide a more adequate margin of safety.
ii) Following a suggestion put forward by Mr Crabtree I think that approximately four weeks prior to the next court review there ought to be a multi-disciplinary meeting between the local authority workers, the mental health team, other appropriate professionals and the Official Solicitor to determine if an agreed case summary can be arrived at. If it can, this should be sent to the judge to consider whether an oral hearing or any other directions are required. In the event that a case summary cannot be agreed (or if there differences of opinion as to the way forward), a factual summary should be agreed and this together with position statements from those still active in the proceedings should be sent to the judge, who will then determine on the papers submitted whether an oral hearing is required and/or what other directions ought to be made. In either case, suggested draft directions should accompany the case summary or (as the case may be) the position statements.
iii) Every order must contain a liberty to apply, if need be on short notice. In the event of such an application being contemplated, it is vital that the Official Solicitor is given the earliest possible notification and supplied at the earliest possible opportunity with copies of all the up to date assessments, reports, records and other relevant material. I repeat in this context the point already made in paragraph [32] above.

44. Between these reviews by the court there must be regular internal reviews. In practice – and this is a practice which the Official Solicitor supports and which I commend – these are usually held once every eight to ten weeks. Mr Crabtree suggests that quarterly reviews may suffice. Particularly in the early months and years I would incline to agree with Mr O’Brien, but I would also agree with Mr Crabtree that one cannot be too prescriptive. As he rightly says, the review structure must always be specifically tailored to the needs of the individual to whom it applies.

45. That said, and as both Mr O’Brien and Mr Crabtree observe, and again I agree, the fact that a review is planned, for example, for a specified date each month, does not obviate the need for an earlier review if, for example, there is reason to believe that the person is no longer incapacitated or that it is not in his best interests to be deprived of his liberty or that some less restrictive option may be available. As Mr Crabtree put it, no matter what internal review structure is put in place, evidence of any significant change must of itself prompt speedy consideration of the need for calling an early internal review. He adds, and I agree, that where an important change in circumstances arises, it is incumbent on the local authority to inform the Official Solicitor promptly and if either the local authority or the Official Solicitor feels it is of sufficient magnitude, bring the matter to the immediate attention of the judge.

46. At each internal review the local authority must consider the issues both of capacity and of best interests. Mr O’Brien suggests that at each internal review there will be a need to have regard to any relevant reports from the independent psychiatrist on the issues of capacity and (where appropriate) best interests and from the independent social worker on the issue of best interests. But he submits that internal reviews need not involve further full assessments from the independent experts unless there is reason to believe that there has been a change either in the person’s capacity or in what his best interests require. Mr Crabtree takes essentially the same position. I agree. What is needed at any particular review in any particular case will very much depend upon the past and present circumstances of the case.

47. Mr O’Brien submits that at each internal review the interests of the person who has been deprived of his liberty should be represented by an independent person. I agree, save that for Mr O’Brien’s word “should” I would substitute the mandatory “must”.

48. Mr O’Brien points to paragraph 139 of Schedule A1 to the 2005 Act (which provides for the appointment by the supervisory body as defined in paragraph 182, that is by the local authority, of a “representative” for the person deprived of his liberty) and submits that, pending the coming into force of that provision, some suitable independent person who would satisfy the eligibility requirements in paragraph 5 of the draft Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative) Regulations 2008 were they in force, should be appointed for someone in BJ’s position to carry out the same functions as would, once paragraph 139 is in force, be carried out by his “representative”.

49. Those functions are set out as follows in paragraph 4.2 of The draft addendum to the Mental Capacity Act 2005 Code of Practice:

“The role of the relevant person’s representative, once appointed, is:

• to maintain contact with the relevant person, and
• to represent and support the relevant person in all matters relating to the operation of the deprivation of liberty safeguards,

including, if appropriate, triggering a review, using an organisation’s complaints procedure on the person’s behalf or making an application to the Court of Protection. This is a crucial role in the deprivation of liberty process, providing the relevant person with representation and support that is independent of the commissioners and providers of the services they are receiving.”

50. Mr O’Brien observes that it is not clear in BJ’s case who would carry out that role and that the local IMCA may well confirm that this role is not presently within its capabilities and remit. He suggests, however, that the local authority may well be able to identify a suitable person locally, perhaps, given the nature and complexity of the issues in this particular case, an independent social worker or other suitable expert. Mr Crabtree is not so sanguine. Indeed, and consistently with his submissions as to the Official Solicitor’s ongoing role in relation to reviews by the court, he submits that at least until the Schedule A1 mechanisms are in place it is the Official Solicitor who should adopt the role of BJ’s “representative” at each internal review. I agree. In my judgment, so long as he remains the patient’s litigation friend in a case such as this, the Official Solicitor, unless in the particular case he can find some other appropriate person to act in this role, must be as involved in the regular internal reviews as in the less frequent reviews by the court.

51. At the end of the day, as Mr O’Brien rightly says, without the independent oversight which only such a person can being to the task in hand, the internal reviews will not comply with the intention behind the proposed arrangements, arrangements which, as he correctly submits, are fundamental to a lawful process compliant with Article 5(4).

52. Mr Crabtree rightly points out the need to ensure that everyone who is to participate in the regular internal reviews must be supplied in good time with all the relevant reports and other papers; that each internal review is called in an organised way; and that there is a proper agenda. He and Mr O’Brien agree that it is essential – I agree and wish to emphasise the point – that proper minutes are kept of both the discussions and the conclusions reached at each internal review and that all the reports and other material received at each internal review are retained.

53. Mr Crabtree also suggests, and I agree, that either the care plan which has been approved by the court or the preceding order of the court should specify the number and frequency of the internal reviews which are to be held before the next court review.  

Reviews – the present case
54. The order I made on 6 February 2008 provided for internal reviews of the continued restriction of BJ’s liberty to take place at meetings in March and April 2008 which the Official Solicitor would be invited to attend and for which he would be supplied with relevant papers. The matter was further to be reviewed at a meeting of BJ’s multi disciplinary team to be held in the week commencing 17 April 2008 which the Official Solicitor would likewise be invited to attend and for which he would be supplied with relevant papers.

55. The matter (with other related parts of the litigation) came back before Ryder J on 7 May 2008, when he in substance continued the order I had made on 6 February 2008 and directed that the matter be listed for review before me within 21 days of this judgment being handed down. Helpfully and appropriately his order directed that the local authority was, at least 14 days prior to that review, to file and serve a statement updating the court on issues concerning BJ’s welfare and particularly addressing whether there is any further need to seek permission to deprive him of his liberty.

56. Congruent with the general approach I have outlined above, and looking to BJ’s particular circumstances – as Mr O’Brien observes, the facts of BJ’s case are stark – what in my judgment is required in the present case is this:

i) in June 2008 a review before me in accordance with the directions given by Ryder J on 7 May 2008;
ii) subject to any further information which may emerge at or as a result of that hearing, a further review in court with an oral hearing in (say) May or June 2009; and
iii) in between those two reviews by the court, internal reviews every eight to ten weeks. At least for the first year I agree with Mr O’Brien that reviews should be at this level of frequency rather than the three-monthly reviews suggested by Mr Crabtree.

57. These arrangements will be subject to (a) liberty to apply to court, if need be on short notice, and (b) earlier internal reviews if circumstances indicate (see paragraph [45] above). The case will be reserved to me or, in my unavoidable absence, to Ryder J.

58. By the date of the review in May/June 2009 the relevant provisions of the 2005 Act may be in force. If so, consideration can be given at that stage to the case being transferred from the Family Division to the Court of Protection and for the implementation of the procedures contemplated by Schedule A1.

A concluding observation
59. In conclusion I should like to take this opportunity to make a general point.

60. My experience is that in too many cases involving incapacitated adults the proceedings become unnecessarily protracted and that too often the timetable set by the judge is not adhered to. Delays which would no longer be tolerated in care cases involving children are still all too frequent in cases involving adults. Whilst appreciating that the forensic analogies must not be pressed too far, I cannot help thinking that the principles of judicial continuity and pro-active judicial case management which are now a recognised part of practice in care cases involving children have an equally part to play in the context of the adult jurisdiction.