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Court of Protection Update (January 2012)

Sally Bradley, Barrister, of 4 Paper Buildings, reviews significant recent decisions in the Court of Protection relating to deprivation of liberty, the appointment of a Relevant Person's Representative as litigation friend and costs.

Sally Bradley, Barrister, 4 Paper Buildings

Sally Bradley
, Barrister, 4 Paper Buildings

This edition of the Court of Protection Update looks at recent developments concerning: 

Deprivation of liberty
RK v BCC and others
In RK v BCC and others [2011] EWCA Civ 1305 the Court of Appeal dealt with the issue of whether the placement of a child in supported accommodation amounted to a deprivation of liberty under Article 5. RK had initially been placed in supported accommodation under a section 20 CA 1989 agreement made between her parents and the local authority. RK's mother, also acting as her litigation friend, subsequently applied to the Court of Protection for determination of whether RK lacked capacity. The OS was appointed as RK's litigation friend. At a hearing before HHJ Cardinal, the OS argued that the care plan and arrangements for RK might amount to a deprivation of liberty. 

The case was transferred to the High Court and came before Mostyn J who found that the accommodation of the child under section 20 did not amount to a deprivation of liberty:

"My primary decision is that, given the terms of Section 20(8), the provision of accommodation to a child, whether aged seventeen or seven, under Section 20(1), (3), (4) or (5) will not ever give rise to a deprivation of liberty within the terms of Article 5 of the European Convention on Human Rights.  If the child is being accommodated under the auspices of a care order, interim or full, or if the child had been placed in secure accommodation under Section 25, then the position might be different, but that is not the case here."

This paragraph formed the focal point of the appeal by RK's mother against Mostyn J's judgment. The Court of Appeal criticised Mostyn J's reasoning set out above, but nevertheless dismissed the appeal. The Court held that whilst parents in the exercise of their parental responsibility may impose or authorise others to impose restrictions on the liberty of the child, the restrictions must not 'in their totality' amount to a deprivation of liberty. Mostyn J was therefore wrong to say that the Article 5 rights of the child were not engaged by being accommodated under section 20.

The appeal was dismissed, however, on the basis that the parents had continuously consented to RK's accommodation by the local authority, including during the hearing before Mostyn J. Taken as a whole, the restrictions placed on RK did not amount to a deprivation of her liberty. The Court upheld Mostyn J's 'trenchant' analysis of the accommodation provided by the local authority:

"I find it impossible to say, quite apart from s20(8) Children Act 1989, that these factual circumstances amount to a "deprivation of liberty".  Indeed it is an abuse of language to suggest it.  To suggest that taking steps to prevent RK attacking others amounts to "restraints" signifying confinement is untenable.  Equally, to suggest that the petty sanctions I have identified signifies confinement is untenable.  The supervision that is supplied is understandably necessary to keep RK safe and to discharge the duty of care.  The same is true of the need to ensure that RK takes her medicine.  None of these things whether taken individually or collectively comes remotely close to crossing the line marked "deprivation of liberty"."

The Court of Appeal's decision makes clear that any accommodation of a child provided by a local authority must be looked at in the round to determine whether or not it amounts to a deprivation of liberty. A section 20 placement can amount to a deprivation of liberty depending on the features of the particular accommodation, despite section 20(8) which allows any holder of parental responsibility to remove the child from the accommodation at any time. However, the Court's adoption of Mostyn J's analysis of the accommodation provided to RK, which it adopted without carrying out any analysis of its own, indicates that it is unlikely that children accommodated under section 20 will be found to be deprived of their liberty. This was made more or less explicit by Gross LJ in his concurring judgment:

"I am particularly and respectfully struck by the force of Lord Hope of Craighead's observation in Austin v Metropolitan Police [2009] UKHL 5; [2009] 1 AC 564, at [34]:

" I would hold therefore that there is room, even in the case of fundamental rights as to whose application no restriction or limitation is permitted by the Convention, for a pragmatic approach to be taken which takes full account of all the circumstances."

35. Once such a "pragmatic approach" taking "full account of all the circumstances" is adopted, the conclusion follows, as explained by Thorpe LJ at [27] – [29], supra.  The restrictions in question did not amount to a deprivation of liberty."  

C v Blackburn and Darwen City Council
In C v Blackburn and Darwen City Council [2011] EWHC 3321 (COP) Jackson J had to consider whether the accommodation in a local authority care home of a 45 year old man (C) with an acquired brain injury amounted to a deprivation of his liberty. He was subject to 1:1 supervision both inside and outside the home. C gave evidence on his own behalf. He stated that he was unhappy in the care home and wished to leave. The OS made submissions on C's behalf that the standard authorisation for his accommodation was flawed because it was not specific about what was and what was not permitted. The local authority argued that C was not being deprived of his liberty despite his unhappiness at being in the care home.

Jackson J held that, on a narrow balance, C was subject to a restriction on his liberty rather than being deprived of it:

"I accept that Mr C is acutely anxious about the restraints upon him, being more aware of his predicament than the subjects of previous reported cases. On the other hand, the restraints upon him within and outside the care home are relatively lighter. The existence of locked doors and a requirement of supervision are not in themselves a deprivation of liberty, where their purpose is to protect a resident from the consequence of an epileptic fit, or harm caused by a lack of awareness of risk, or from self-harm. The limit on the number of outings as a consequence of staffing levels does not tip the balance, when Mr C in fact has quite regular access to the community and to his family."

The judge relied on the decision of the Court of Appeal in the Cheshire West & Chester Council v P [2011] EWCA Civ 1257 case, in particular the difference which it makes if the person has an alternative home which is realistically available. Although C wished to live an unconstrained life in the community, this was not realistically available given his difficulties. The decision in Cheshire has been criticised for effectively leading to a situation in which a person who is required to live in a care home against their wishes can be found not to be being deprived of their liberty. Although the deprivation may be justified, it surely does not reflect the reality of a person's situation to say that they are not being deprived of their liberty if they object to their continued accommodation. C v Blackburn and Darwen City Council indicates that that is the effect of the decision of the Court of Appeal in Cheshire.

It is also worth noting Jackson J's conclusion that the Court of Protection does not have jurisdiction to determine a person's place of residence where a guardianship order is in place. A guardianship order under the MHA had been made in this case in respect of C. Section 8(1)(a) of the MHA provides that the guardian shall have the power to require the  patient to reside at a place specified by the authority or person named as guardian. The judge found that the wording in section 8(1) 'to the exclusion of any other person' was broad enough to include the Court of Protection. Although clearly obiter, this part of the judgment is likely to be relied upon in deprivation of liberty cases which a guardianship order is in force.  

Relevant Person's Representative
In AB v LCC (a Local Authority) [2011] EWHC 3151 (COP) Mostyn J found that a Relevant Person's Representative (RPR) could act as a litigation friend for the purposes of a section 21A Mental Capacity Act 2005 challenge to the relevant person's deprivation of liberty. RPRs were created by Schedule A1 to the Mental Capacity Act 2005. They must be appointed as soon as practicable after a standard authorisation for a relevant person's placement in a care home is given by a local authorisation [MCA 2005, Schedule 1A, Part 10, r 139(1)]. The RPR is then required to maintain contact with the relevant person, represent and support them in matters relating to his deprivation of liberty [r 140(1)].  

The proceedings concerned an 81 year old man (AB) who suffered from vascular dementia and memory and cognitive impairment. AB had been placed in a care home in April 2011 and a standard authorisation was made by the local authority for that placement. The matter came before the court after a challenge to a second standard authorisation issued by the local authority – the section 21A challenge.

The Official Solicitor was appointed by the Court to act as AB's litigation friend. AB's solicitor then made an application for AB's RPR to act as his litigation friend. Mostyn J found that AB's RPR should be appointed in place of the OS and published his judgment to 'provide some practical guidance on the question of the representation of the person who is the subject of the proceedings in this and similar cases.' 

The test for the appointment of a litigation friend is set out in rule 140 of the Court of Protection Rules:

(1) A person may act as a litigation friend on behalf of a person mentioned in paragraph (2) if he -

(a)     can fairly and competently conduct proceedings on behalf of that person; and
(b)     has no interests adverse to those of that person.

(2)  The persons for whom a litigation friend may act are -

(a)     P;
(b)     a child; or
(c)     a protected party.

In addition to rule 140, any proposed litigation friend must also confirm that they will act in P's best interests.

Mostyn J found that there was no impediment to him appointing AB's litigation friend as his RPR in the section 21 A challenge provided that:

i) the RPR is not already a party to the proceedings;

ii) the RPR fulfils the COP rule 140 conditions [ie to make contact with, represent and support the relevant person];

iii) the RPR can and is willing to act as litigation friend in P's best interests; and

iv) the procedure as set out in COP rule 143 is complied with [which states that the only people who can appoint an RPR are: the relevant person, if they have capacity; a done of a lasting power of attorney; a deputy, if it is within the scope of their authority; a best interests assessor; or a supervisory body]. 

There are advantages and disadvantages to the appointment of the RPR as litigation friend. On the plus side, the RPR is likely to have already met the detained person, they will provide continuity, it may be cost effective in avoiding duplication of work, they may well be situated close to the geographical area where the detained person resides, and the detained person will not have to meet another person which may be unsettling or confusing.

The disadvantages, however, are that the detained person and the Court will not have the benefit of the Official Solicitor's assistance, the RPR will need to show that they fulfil the conditions of appointment as a litigation friend which may lead to additional expenditure and court time, the RPR acting as litigation friend may have less time and resources to fulfil their role as an RPR, and any delay in assessing the suitability of the RPR may fall foul of the requirement for the Court to review promptly the deprivation of liberty pursuant to Article 5(4) ECHR. The list of advantages and disadvantages set out by Mostyn J provides the battleground for any application by an RPR to act as a litigation friend. AB v LCC makes clear that an RPR can act as a litigation friend, but the question of whether they should so act remains a decision for the Court. 

The long running litigation in the Neary case came back before the Court in December 2011 for determination of the issue of costs: LB Hillingdon v Neary [2011] EWHC 3522 (COP). The judgment is worth noting for Mr Justice Jackson's review of the previous authorities on costs: SC v LB Hackney [2010] EHC B29 (COP), G v E [2010] EWHC 3385 (Fam) (reviewed in the last edition of this update) upheld on appeal in Manchester City Council v G [2011] EWCA Civ 939, D v R (the Deputy of S) and S [2010] EWHC 3748 and AH v Hertfordshire Partnership NHS Foundation Trust [2011] EWHC 276 (COP). Jackson J commented on these authorities as follows:

"7. I find that these decisions do not purport to give guidance over and above the words of the Rules themselves – had such guidance been needed the Court of Appeal would no doubt have given it in Manchester City Council v G. Where there is a general rule from which one can depart where the circumstances justify, it adds nothing definitional to describe a case as exceptional or atypical. Instead, the decisions represent useful examples of the manner in which the court has exercised its powers.

8. Each application for costs must therefore be considered on its own merit or lack of merit with the clear appreciation that there must be a good reason before the court will contemplate departure from the general rule."

Departure from the general rule that there will be no order for costs in Court of Protection proceedings concerning P's personal welfare [Rule 157] should only be 'contemplated' where it is justified by one of the grounds in Rule 159, namely the conduct of the parties, whether a party has succeeded on part of his case, even if he has not been wholly successful, and the role of any public body involved in the proceedings. Any departure from the general rule should only be made where there is 'good reason' to do so. The earlier authorities provide examples of the application of these rules, rather than any additional gloss on them.

The application for costs in the case before Peter Jackson J was brought by the OS for indemnity costs against the local authority for its disorganised decision making, the lack of proper assessment of Steven Neary's best interests, its delay in referring the matter to court and its attempt to defend its actions to the end in court and in the media. Jackson J held that a departure from the general rule was justified because of the conduct of the local authority. No costs order was made in respect of the publicity issue, which raised matters of wider public interest, but costs were ordered for the majority of the other proceedings. Although the application for indemnity costs was 'respectable', costs on a standard basis were justified in the circumstances.