Mental Capacity Case

Re NRA & Ors

Charles J


Re NRA is the latest instalment in the Re X saga, in which the Court of Protection attempts to deal with the fallout from the judgment of the Supreme Court in Surrey County Council v P and others (Equality and Human Rights Commission and others intervening), Cheshire West and Chester Council v P and another (Same intervening) [2014] UKSC 19 [2014] AC 896 ("Cheshire West"). In it, Mr Justice Charles, the Vice President of the Family Division, reaches the following key conclusions, the background to which are explained in more detail below:

  1. The streamlined "Re X" procedure devised by Sir James Munby P should be reintroduced, subject to a number of improvements aimed at drawing more information from social services authorities at the outset;
  2. Family members, in particular family members that have been devoted to caring for P for years, are generally to be trusted by the Court as capable of advocating for P's best interests;
  3. In the large number of cases in which there is every reason to trust the judgment of family members, P need not therefore be joined as a party to proceedings. To do so would add no value and would, on the contrary, cause some detriment. This finding marks a clear disagreement with the Court of Appeal in Re X;
  4. In practice it may be preferable for family members to be formally appointed as representatives under the new COPR 3A, because in that capacity the Court can exercise a degree of direction over them, they have a formal status, and there is an identified person who is responsible for, e.g., keeping P's arrangements under review;
  5. Where there was no suitable family member to consult then, rather than falling back on joining P as a party, the Court should fill the deficit itself by taking on a more inquisitorial role, principally though the increased use of s.49 reports and witness summonses.

By way of background, Sir James Munby, the President of the Family Division, had tried in Re X [2014] EWCOP 25; [2015] 1 WLR 2454 to develop a streamlined paper procedure for non-controversial deprivation of liberty applications, to deal with the expected increase in such applications following Cheshire West. On appeal, the Court of Appeal (a) decided that the President's rulings were, for technical reasons, a procedural nullity and therefore of no effect, but (b) expressed the obiter view that, in any event, the President had erred in finding that P did not need to be joined as a party in all cases involving a deprivation of liberty. On the contrary, each of the judges of the Court of Appeal considered (obiter) that P did need to be a party, with all the procedural consequences that flowed from that.

The issue for the Court in Re NRA

The problem with which the Court of Protection therefore continued to be faced after Re X was (a) that a system was still needed in which P had Article 5-compliant procedural safeguards in cases involving a deprivation of liberty; but (b) those safeguards had not to be not so onerous that they diverted resources away from frontline services, caused unnecessary interventions in the lives of P and those who care for P, or resulted in so much delay that they no longer provided a practical and effective procedural guarantee after all.

Charles J's solution

Charles J considered that the three things that needed to be done in any welfare case were to:

  1. Elicit P's wishes and feelings and make them known to the Court without causing P unnecessary distress;
  2. Critically examine, with P's best interests in mind, and with a detailed knowledge of P, the pros and cons of the proposed care package and whether it was the least restrictive available option;
  3. Keep the implementation of the care package under review and raise points relating to it and to changes in P's behaviour or health.
Charles J drew on his long experience in the Family Division to conclude that family members, particularly those who had cared for P and fought their corner for many years, would in general be the best placed to fulfil the three tasks above. And that being the case, he considered that it made no difference what hat the family member wore in so doing: whether they advocated in their own right, whether they did so as litigation friend for P, or whether they acted as P's Rule 3A representative. Either way, P would have the necessary procedural guarantees, without the need for an overly burdensome or interventionist process involving joining P as a party.

In light of this conclusion, Charles J had the unenviable task of departing from the forceful logic of a unanimous Court of Appeal in Re X that, for the reasons given in that case, Article 5 required the joinder of P as a party in all cases involving a deprivation of liberty. Under the telling subheading "Flaws and gaps in the reasoning of the Court of Appeal", Charles J did so by holding that the Court of Appeal in Re X had failed to properly appreciate that, first, joining P as a party in all cases was unworkable in practice and so did not provide the practical and effective procedural safeguard sought and, second, that welfare cases in the Court of Protection were to be distinguished from all other deprivation of liberty cases in that:

  1. The determinative issue in such cases is not whether P should be deprived of their liberty, but whether a particular arrangement is the least restrictive option in their best interests. They were not, as such, cases about whether P should be deprived of their liberty. The fact that such an arrangement is a deprivation of liberty was only relevant to the frequency of review required, not to the substantive issues the Court has to determine;
  2. As such arrangements are necessarily in P's best interests, they differ qualitatively from, for example, imprisonment following criminal conviction or detention under the Mental Health Act 1983;
  3. The issues in the Court of Protection are more investigatory than adversarial.
Charles J did not ignore the possibility that a streamlined procedure could allow some cases to slip through the net. But this consideration was outweighed by the facts that (a) the vast majority of the time this would not be the case; (b) in a non-contentious case, little value was to be added by invoking the full panoply of procedural safeguards associated with P having party status; (c) no system, however much safeguarding it offered, would pick up all problem cases; and (d) having a full procedure in all cases was detrimental in that it diverted resources away from frontline services, interfered to an unnecessary degree in private family arrangements, and was unworkable.

Improvements to the Re X process

Charles J essentially agreed that the current Re X forms properly direct the minds of the authors to the key issues and elicits the correct information for the Court. However, he considered that it would be an improvement to the forms if they required the key provisions of the care package to be summarised, and the questions currently asked in the form to be answered by reference to that summary. The summary should in particular include the level of supervision (1:1, 2:1 etc), the periods of the day when supervision is provides, the use or possible use of sedation or restraint, the use of assistive technology, and what would happen if P were to try to leave. The form should also include:

  1. if the proposed placement has not yet taken place, information about any transition plan;
  2. if P is already living at the placement, the date P moved there, where he or she lived before, why the move took place, and how the move was working,
  3. any recent change or planned change in the care package and the reasons for it' package and the reasons for it ;
  4. an explanation as to why the identified sedation or restraint are or may be used, and why they are the least restrictive measures to deal with the relevant issues;
  5. information as to any tenancy agreement, and who has the authority or needs to apply for the authority to sign it on P's behalf,
  6. a question about why it is thought the case is not controversial and can be dealt with on the papers;
  7. a question directed to participation of family and friends over the years, the nature of the care they have provided, their approach to issues relating to its provision in the past, and so the reasons why it is thought that they will provide objective and balanced support for P in his or her best interests;
  8. a question that requires the reasons why family and friends support the care package to be set out;
  9. a question directed to the willingness of a family member or friend to be a litigation friend or a Rule 3A representative and their ability to keep the care package under review;
  10. questions directed to the suitability of family members of friends for such appointment that direct the author of the answers to particularise the answers by reference to the history of P's care;
  11. a question on what options have been considered and why the care package advanced has been chosen as the appropriate one;
  12. any conflicting interests, e.g. between different service users, within the proposed placement;
  13. an analysis of and reasons for any restrictive practices, as to which the production of actual care notes rather than a lengthy summary could be very informative;
  14. information, perhaps by way of statement, from actual carers.
Where there is no family member available

Finally, Charles J considered what would happen where no family member was available. He recognised the need for some kind of independent scrutiny of the local authority's arrangements, and considered that absent such scrutiny the necessary procedural safeguards for P would probably be lacking. His solution, ultimately, is that such scrutiny is to be provided by the Courts. Judges considering such applications should pick up on the absence of a family member on whom it could rely, and should seek instead to obtain further (independent) information by ordering s.49 reports and making witness summonses.

Comment by Ben Tankel[1]

One sympathises very much with the concerns expressed by Mr Justice Charles about the ability of the system to cope with the fallout from Cheshire West, and his attempt to provide a workable solution to the logistical problems that that judgment has caused. His judgment is unorthodox, however, in that it is so clearly policy-driven: it expressly weighs up the risks of a streamlined procedure versus the costs of a full procedure, and opts for policy reasons (albeit supported by careful reference to the law) for the former. One might well ask whether, notwithstanding the unparalleled experience of the presiding Judge, the Court is the body best placed to make policy decisions of this nature.

There is a further query as to whether, in cases in which there is no family member available, the proposed solution of a more inquisitorial Court of Protection expects too much of district judges with their busy lists and piles of box work. Will District Judges really have the time to identify and follow up, of their own volition, potential problem cases? There is perhaps reason to doubt that, given the time and other pressures on them, they may not.

These reservations notwithstanding, it seems likely that, for now at least, Re NRA will lead to the reintroduction of the streamlined Re X process (currently on hold following the judgment of the Court of Appeal in Re X), modified to a greater or lesser degree. But given the clear difference of view between the Court of Appeal in Re X and Charles J in Re NRA, the question of whether P should be joined as a party remains wide open. Re NRA is very unlikely to be the last word on the matter.

Practice update

As at the point of going to press, the precise procedures to be implemented by the Court of Protection to reflect the judgment of Charles J (and the timing of the necessary amendments to the DOL 10 form) are not yet clear.   Further, we should note that it is not immediately clear from the judgment whether Charles J envisaged that it would be possible for the court to make the necessary appointment of a family member/friend as a Rule 3A representative and to make the order authorising the deprivation of liberty at one and the same time, or whether there would need to be two stages to the process. However, given the overall tenor of the judgment, we suggest that, in implementing the judgment, the courts will be likely to be striving to minimise the number of steps required where such can properly be done.   We will update our guide when we are able to do so; in the interim we strongly suggest that:

  1. applications for orders authorising uncontentious deprivation of liberty outside care homes and hospitals continue to be brought on the COP DOL 10 form, but that the accompanying witness statement also addresses the questions outlined above;
  2. steps are taken to identify, where possible, a family member or friend who would be in a position to fulfil the representative and review roles identified by Charles J, and confirmation that such family member/friend is in agreement with the arrangements.   Ideally, a statement from the family member/friend should be submitted with the application.   This will potentially enable the court to make the order authorising the arrangements on the first occasion that the judge has the chance to consider the papers.
[1] Junior Counsel for the Official Solicitor, who also prepared the summary above, for which we are very grateful.