Re JM, AMY, JG, MM and VE
It has been over two years since the Supreme Court handed down its decision in Cheshire West. In a further round of test cases, following Re X  EWCA Civ 599 and Re NRA  EWCOP 59, Charles J continues to grapple with the practical implications of the Cheshire West decision for public bodies and the Court of Protection. On this occasion, the issue was who is to be P's Rule 3A representative where there is no family member or friend?
The Secretary of State argued that the court should use its case management powers to direct the local authority to provide or to identify a person who the court could appoint as a Rule 3A representative. The court rejected that approach. In a judgment which was highly critical of the Secretary of State's position, Charles J said at paragraph 17:
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."
At paragraph 19, Charles J found that the Secretary of State had demonstrated "…an avoidant approach that prioritises budgetary considerations over responsibilities to vulnerable people who the Supreme Court has held are being deprived of their liberty."
Charles J considered the evidence of the Official Solicitor which was that, if only a small percentage of the necessary and expected applications were made in the near future, it was inevitable that the Official Solicitor would shortly reach "saturation point" and would not accept further invitations to act as the litigation friend of last resort. The resources of the Official Solicitor are funded by the Ministry of Justice and neither the Official Solicitor nor the Ministry of Justice indicated that it was likely, or even being considered whether, the Official Solicitor would be provided with more resources.
The solution adopted by Charles J was to make an order:
- joining both the Ministry of Justice and Department of Health as parties;
- inviting the parties to take steps to identify a suitable person for immediate appointment as a Rule 3A representative or identify an alternative procedure available to the COP to meet the minimum procedural requirements;
- staying the applications pending the identification of a practically available alternative procedure; and
- giving all parties liberty to apply to lift the stay.
Charles J readily acknowledged the consequences that "absent the provision of relevant resources, the likelihood, if not the inevitability, is that this approach will create a backlog comprising a very large number of stayed cases. Plainly this is unfortunate but it will identify the extent of the problem and why the COP and the applicant authorities have not been able to progress the applications for welfare orders to authorise P's deprivation of liberty."
He continued at paragraph 30: "If applicant authorities decide not to spend time and money on making applications that they know are likely to be stayed that backlog will not be as large and the extent of the problem will be less easy to quantify and less obviously placed at the door of the lack of an available court procedure that meets the minimum procedural requirements."
Charles J was at pains to emphasise that the primary responsibility to provide resources to enable the Court of Protection to meet the minimum procedural requirements falls on the Secretary of State, or on the Secretary of State together with local authorities. Charles J offered a number of suggestions to the Secretary of State at paragraph 28:
"…There are a number of routes that the Secretary of State could take, alone or with local authorities, to provide the necessary solution. They include:
- The Secretary of State could do effectively what the MoJ and the DoH assert local authorities can and would do without significant expenditure or difficulty if so directed by the COP, namely entering into contracts with providers of advocacy services to supply a pool of persons who can be appointed as Rule 3A representatives. If entered into with the Secretary of State these would be new rather than varied contracts. But effectively the Secretary of State would be doing what he asserts local authorities can and should do by agreement with providers of advocacy services.
- The Secretary of State could assist local authorities to achieve this result by providing additional resources.
- The Secretary of State could set up a pool of accredited legal representatives which is a possibility envisaged by Rule 3A made with the concurrence and so support of the Lord Chancellor.
- The Secretary of State could provide further resources to the Official Solicitor.
- The Secretary of State could make changes to legal aid.
- The Secretary of State could provide further resources to enable s. 49 reports to be obtained or to create a wider pool of visitors to enable the COP to instruct them to investigate P's proposed placement."
As at the date of going to press, we do not know whether the Secretary of State will seek permission to appeal.
The sense of frustration in Charles J's judgment is palpable. And the risk of harm to vulnerable people is real. The deadlock between the government and the executive is resulting in those lacking capacity not being moved out of inappropriate care settings because the Court has not authorised the next deprivation of liberty. All practicably workable solutions to meet the increased workload following Cheshire West are likely to involve more expenditure in a time of austerity. This is not something that the court can compel the Secretary of State to provide. As the backlog of cases continues to build, we are left wondering whether we have now reached a stalemate. There is, at the moment, no foreseeable way out of this predicament. However, the clear message to public authorities is to continue making applications where an individual is being deprived of their liberty in circumstances requiring authorisation from court.