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Judge asks Government to find solution for Cheshire West fallout

Details

Re JM & Others [2016] EWCOP 15: Hill Dickinson acts in test case which asks central government to find processes for dealing with Deprivation of Liberty authorisation applications 

This test case follows a string of recent cases that have considered the minimum procedural requirements for protecting the rights of an individual (P) in court applications seeking authorisation of care arrangements which amount to a deprivation of liberty.  In this test case, Mr Justice Charles considered specifically how to protect P where they have no family or close friends to act in a representative role on their behalf. 

Hill Dickinson acted on behalf of one of the group of five applicants, which consisted of local authorities and a CCG.

Key points of judgment

Mr Justice Charles held that, in uncontested cases, P does not need to be a party to proceedings but, in order to be properly protected, requires a representative (referred to as a ‘Rule 3A’ representative) to act on his/her behalf. That representative plays a similar role to the Relevant Person’s Representative appointed as part of standard authorisations granted under the Deprivation of Liberty Safeguards (DOLS).

The key issue was how such representation could be arranged for individuals who do not have close family members or friends who are suitable and willing to act in this role. The judge found against the argument made by the Secretaries of State for Health and Justice that local authorities and CCGs could and should extend their current local advocacy service provision to ensure a sufficient supply of representatives.

The judge confirmed that:

1. There is no duty on local authorities or CCGs to fund Rule 3A representatives;

2. The courts should not order local authorities or CCGs to identify or provide information about the availability of Rule 3A representatives in cases where P does not have close family members or friends who could act in this role;

3. Central government is primarily responsible for finding the solution for making representatives readily available and workable in practice or for finding an alternative means for ensuring the minimum procedural safeguards are met; and

4. Until such a solution is identified, all applications involving individuals who do not have family members or friends to act as Rule 3A representatives are placed on hold.

Comment

From the perspective of local authorities and CCGs, this judgment is likely to receive a mixed response.  The judge is clearly sympathetic to the difficulties these organisations face and his judgment seeks to force the hand of Central Government to take responsibility for resolving this issue.  It is of course positive that no duty on local authorities or CCGs to fund Rule 3A representatives has been found.   

The frustrating point is that, until central government addresses the issue, care arrangements will remain without court authorisation, creating a significant backlog. In the interim, organisations may be able to rely on section 4B of the Mental Capacity Act 2005 which authorises a deprivation of liberty while a decision is sought from the court, where the deprivation of liberty is necessary and for the purpose of giving life-sustaining care or carrying out any act necessary to prevent a serious deterioration in P’s condition.

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