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Who will speak for those whose liberty is in the hands of the Court of Protection? – Article by Justin Holmes

Re KT & Others [2018] EWCOP 1 shows that the government is still washing its hands of the problem – and there are consequences for all Court of Protection cases

Thousands of people are deprived of their liberty in care homes and under other kinds of care regimes and do not have the mental capacity to make a legally valid decision to agree to this deprivation of their liberty. Most of them acquiesce perfectly happily, and in most cases the care providers are genuinely acting in their best interests. The House of Lords decided in March 2014 in P v Cheshire West and Chester Council [2014] UKSC 19, however, that in those cases the deprivation of liberty must still be investigated and authorised by the court. Even in cases where everyone involved believes that the care package is in the best interests of the person concerned, the Court of Protection must give formal approval.

In normal court proceedings, the person concerned would be made a party to the proceedings and the Court would, if necessary, appoint a litigation friend to act on her behalf and represent her interests in the proceedings. The difficulty is that being a litigation friend is an onerous responsibility, and even close family members often refuse to do it. In cases involving property and affairs, it is usually possible to find a litigation friend, since the person concerned usually has sufficient assets to cover the costs of the proceedings and not leave the litigation friend out of pocket. Even if no family member will do the job, or they are all precluded from doing so by conflicts of interest, the Official Solicitor will act. The problem with deprivation of liberty authorisations, however, is that frequently those concerned have very few assets, and those assets which they do have they rather need to keep, so that a litigation friend who incurs costs of legal advice and representation is likely to end up out of pocket. In these cases the Official Solicitor will not act, and the applicants – who mainly comprise local and health authorities – have to try to find someone else.

In order to meet this difficulty, the Court of Protection changed its rules to allow family members and others to be appointed as “Rule 1.2 Representatives”. They would be asked to file evidence with the Court about the circumstances, wishes and feelings and so on of the subject of the proceedings, and to give their view on whether or not the care regime was in the person’s best interests, but would not have the same duties or expenditure as they would have if acting as litigation friends. The Court of Protection also invented a second kind of Rule 1.2 representative, a professional advocate (such as a solicitor or barrister), who could be directly appointed to represent the person concerned. Both of these measures were adopted out of simple expediency, and represent a weakening of the procedural protection afforded to people whose decisions are being made by the Court of Protection.

Despite this, however, the situation is still desperate. In about 10% of cases it is not possible to find anyone to act as a litigation friend or as a Rule 1.2 Representative, lay or professional. In March 2016 the Court of Protection started staying cases where nobody could be found to represent the subject of the proceedings, since they could not be dealt with fairly, and joined the Secretaries of State for Justice and Health to a set of test proceedings in an attempt to compel the government to come up with a workable solution (see Re JM [2016] EWCOP 15). To date some 330 cases have been stayed for this reason. In the recent case of Re KT and others [2018] EWCOP 1, Charles J has given a progress report, and it does not make for happy reading.

It is true that a temporary fix has been found. The Court of Protection has at its disposal a group of “Visitors”, professional people employed by the Court to investigate the personal and financial circumstances of people under its jurisdiction and report back to the judge. The Visitors are, in essence, expert witnesses under the Court’s control, and paid for out of public funds. It is not ideal to direct that Visitors (who owe their duties to the Court) should now be effectively asked to represent parties to the proceedings, but in any event there was no money to pay for them to do so. The government has, however, agreed to provide more money for the Visitors, and for his part Charles J has agreed that it will suffice if a Visitor is appointed by the Court to carry out the same sort of investigation of the circumstances, wishes and feelings of a person who is being deprived of her liberty as would have been undertaken by a Rule 1.2 Representative. He warns, however, that the government has probably greatly underestimated the number of cases in which a Visitor will have to be appointed in this role, and consequently that it is likely that cases will again in future have to be stayed once the additional resources run out. Since the Court’s Visitors are used for all kinds of Court of Protection cases, and not just for deprivation of liberty authorisations, it is likely that when the resources run out, all kinds of case will be affected.

It is clear from the judgment that the judge is exasperated by the position adopted by the government. In March 2016 the government accepted that local authorities had no statutory duty to arrange representation for the subjects of deprivation of liberty authorisations, but now it asserts that they do. The judge complains that the government persists in pursuing arguments which it has already lost, does not provide any detail in respect of extra funding which it says is available, provides no analysis of how much funding will be required, does not deal with the questions posed by the Court, and continually attempts to throw financial responsibility onto local government. These are some quotations from the judgment:

-Article by Justin Holmes