Mental Capacity Case

Re X and others (Deprivation of Liberty) (2)

Sir James Munby P


The President of the Court of Protection has now expanded on the preliminary judgment handed down on 7th August 2014 (Re X and others: Deprivation of Liberty [2014] EWCOP 25).

This new judgment does not answer all the questions which were before the President when he heard this case in June 2014, particularly some relating to the possible extension of urgent authorisations by the court (a further judgment addressing these points is still awaited).  It does however expand upon three questions

 "(7)      Does P need to be joined to any application to the court seeking authorisation of a deprivation of liberty in order to meet the requirements of Article 5(1) ECHR or Article 6 or both?

(9)        If so, should there be a requirement that P … must have a litigation friend (whether by reference to the requirements of Article 5 ECHR and/or by reference to the requirements of Article 6 ECHR)

(16)      If P or the detained resident requires a litigation friend, then: (a) Can a litigation friend who does not otherwise have the right to conduct litigation or provide advocacy services provide those services, in other words without instructing legal representatives, by virtue of their acting as litigation friend and without being authorised by the court under the Legal Services Act 2007 to do either or both …?"

The President answered the first question in the negative, primarily using the analogy of wardship proceedings, where wards do not always have to be a party.   Turning to the Convention jurisprudence, the President noted P's entitlement to the safeguards of Article 5(4) and the UNCRPD, and concluded:

"13. Article 6 requires that P be able to participate in the proceedings in such a way as to enable P to present his case 'properly and satisfactorily': see Airey v Ireland (1979) 2 EHRR 305, para 24. More specifically, referring to Article 5, "it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded 'the fundamental guarantees of procedure applied in matters of deprivation of liberty'.": Winterwerp v Netherlands (1979) 2 EHRR 387, para 60. This may require the provision of legal assistance: Megyeri v Germany (1992) 15 EHRR 584, para 23. There is a margin of appreciation (see, for example, Shtukaturov v Russia (2012) 54 EHRR 962, para 68), but this cannot affect the very essence of the rights guaranteed by the Convention. The Strasbourg court has made clear that deprivation of liberty requires thorough scrutiny and that any interference with the rights of persons suffering from mental illness must, because they constitute a particularly vulnerable group, be subject to strict scrutiny. So the process must meet that demanding standard.

14. More generally, P should always be given the opportunity to be joined if he wishes and, whether joined as a party or not, must be given the support necessary to express views about the application and to participate in the proceedings to the extent that they wish. Typically P will also need some form of representation, professional though not necessarily always legal.

15. So long as these demanding standards are met, and in my judgment they can in principle be met without P being joined as a party, there is, as a matter of general principle, no requirement, whether in domestic law or under the Convention, for P to be a party."

It is perhaps to be noted that the suggestion that P will "need some form of representation, professional though not necessarily always legal" does not appear in the first Re X judgment.

In the balance of his judgment, the President then drew a number of further conclusions:

  1. That there was no obstacle to P could participating and be represented in proceedings in the COP without being a party;
  2. If P was a party, there was no reason in principle why the Court of Protection Rules could not be amended to allow P to act without a litigation friend, the real requirement (enshrined in the ECHR) being to ensure that P's interests are properly represented;
  3. (Amplifying the 'headline' conclusion in his first judgment), that a litigation friend may conduct litigation on behalf of P without instructing solicitors – but, unless they otherwise have a right of audience, cannot address the court without permission.

The President noted that all matters he had been considering could properly be regulated by the 2007 Rules. "They are all issues which, as it seems to me, require urgent consideration by the Committee, both as a matter of principle and also to achieve the necessary clarity for which Mr Cragg appropriately called. Some, it may be, might also merit consideration by both the Civil Procedure Rules Committee and the Family Procedure Rules Committee."

He concluded:

"36. It is not for me in this judgment to advise the Committee how to proceed. There is, however, one aspect of the matter to which the Committee will, I suggest, need to give careful consideration. It is essential that where the issue concerns P's deprivation of liberty the Court of Protection's processes are rigorous, so that the circumstances of the individual case are subjected, as they must be, to the strict scrutiny demanded by the Convention. Both our domestic law and the Convention impose demanding standards. But the need to meet this challenge must not be allowed to lead to a system of technical requirements which may, in the real world, operate to deny P the speedy access to a judicial determination which is the very essence of what is required. To speak plainly, the Committee will have to consider how best to craft a process which, while it meets the demanding requirement of the law, also has regard to the realities consequent upon (a) the legal aid regime and (b) the exposure of a litigation friend to a costs risk. There is no point in a system which requires there to be a litigation friend, let alone which requires the litigation friend to instruct lawyers, if the reality is that there is, because of an absence of legal aid and possible exposure to an adverse costs order, no-one willing and able to accept appointment as litigation friend. Indeed, such a system would be self-defeating. And in this connection it needs to be remembered that the Official Solicitor can never be compelled to accept appointment. Moreover, as I understand it, he is not funded to act as a litigation friend in deprivation of liberty cases, so he is dependent on external funding which in many cases will not be available in the absence of legal aid."


We note that, as at the time of going to press, permission had been sought to appeal by two of the protected parties in the proceedings before the President to appeal his conclusions that: (1) (subject to certain conditions) it is not necessary for P to be a party to proceedings for applications for judicial authorisations for deprivation of liberty; and (2) that a litigation friend is not required to act via a solicitor for purposes both of conducting litigation and acting as advocate before the court.   The Law Society has also sought permission to appeal on the first of the points above, and also on the President's decision that an oral hearing is not required in all cases.   We anticipate that it is likely that permission will be granted given the importance of the issues, and hence we keep the discussion of this case relatively limited at this stage because it is likely not to be the last word on these difficult questions.

Notwithstanding the developments set out above, the new Re X procedure is also in the final stages of implementation, and we will keep you posted as and when we can.   In the interim, we have updated our guide to judicial authorisations of deprivation of liberty.