The Court of Appeal has confirmed that both domestic law and the requirements of Article 5 currently mandate that P is joined to proceedings for judicial authorisation of the deprivation of their liberty.
In Re X and others (Deprivation of Liberty)  EWCOP 25 (and No 2  EWCOP 37), Sir James Munby, the President of the Court of Protection sought to devise a streamlined process to seek to enable the court to deal with DoL cases in a timely, just, fair and ECHR-compatible way. The Court of Appeal has, this morning, held that Sir James Munby P had not been entitled to proceed in the fashion that he did, and that his ‘judgments’ were in fact not authoritative statements of the law.
Although the Court of Appeal held that it did not have jurisdiction to consider the appeals brought against the ‘decisions’ of the President, the members of the Court of Appeal made clear that, at least as the Court of Protection is currently constituted, both fundamental principles of domestic law and the requirements of the ECHR demand that P be a party to proceedings for authorisation of deprivation of liberty. Strictly speaking, the conclusions of the Court of Appeal are ‘obiter’ (in other words not binding), but we anticipate that the Re X procedure set down here in Practice Direction: 10AA: Deprivation of Liberty applications (note, the material paragraphs for these purposes are 27 and onwards) is likely to be revised in short order to reflect these conclusions.
A summary of the decision can be found here, and an updated version of our guidance note will be circulated as soon as possible.