Successful appeal against a Judge’s decision in respect of the Protected Party’s Deprivation of Liberty

In the case of CB v Medway Council & Anor (Appeal) [2019] EWCOP, the Official Solicitor appealed against a decision which justified the Protected Party’s Deprivation of Liberty.

The Protected Party was a 91 year old female, who no longer lived at her own property following a fall and persistent urinary tract infections. The Protected Party resided at a care home and was provided with a care package, which ultimately was said to have not worked out. The Protected Party’s litigation friend, the Official Solicitor, made an application to enable the Protected Party to reside at her own property, however, the Judge dismissed this application using her summary power.

The Official Solicitor disagreed with the decision of the Judge and therefore appealed the same. The Official Solicitor argued that the Judge did not abide by her duty to ensure that the Protected Party’s best interests were considered as the Judge had failed to allow the Official Solicitor to gather further evidence to support the argument in relation to the feasibility of the Protected Party returning to live at her property. The Court allowed the appeal as the Protected Party’s Deprivation of Liberty should have been considered and thoroughly explored, rather than the Judge dismissing the application based on speculation and general experience within similar cases.

If you have any queries, please do not hesitate to contact Casey McGregor or the team at COPCosts@clarionsolicitors.com

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Latest statistics show 50% annual increase in orders made under the Mental Capacity Act [2005].

The Family Court statistics bulletin relating to the final quarter of 2017 has been published, providing an overview and insight into the data relating to Court of Protection applications and orders for the year.

The latest report published by the Ministry of Justice show that the number of orders made under the Mental Capacity Act (MCA) continued to rise significantly in the last year, with a staggering 38,945 orders being made in 2017. This is an increase of almost 50% on the number of orders made in 2016. It is noted, however, that much of this increase can be attributed to the clearance of a number of preexisting and outstanding cases during the first quarter of 2017.

Around 40% of the orders made under the MCA in 2017 related to the appointment of a Deputy for property and financial affairs, continuing the consistent increase since 2009. Please see the below table for a complete breakdown of all orders made under the MCA in 2017.

 

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The upward trend relating to numbers of Deprivation of Liberty (DoLS) applications also continued in 2017. There were 3,995 DoLS applications made throughout the year, a 27% increase on 2016, showing the continued increase in awareness of DoLS and the increased impetus to have deprivations authorised. The numbers of DoLS orders made in 2017 also rose by 81%, which (when compared with the 27% increase in applications) evidences the delay between application and order.

There was a continued increase in the numbers of Lasting Powers of Attorney (LPAs) received in 2017; LPAs received rose by 28% between 2016 and 2017, with over 180,000 LPAs being registered in the final quarter of the year alone. This increase is a continuation of the upward trend seen since 2015, likely due to the ease of online forms and increased publicity and media coverage of Powers of Attorney. The long-term downward trend relating to the number of Enduring Powers of Attorney (EPAs) continued, with a 7% annual decrease in EPAs received in 2017.

The full report can be found here.

If you have any questions about the above, please feel free to contact Ethan Bradley at ethan.bradley@clarionsolicitors.com.

Can a family member or care worker be appointed as a Representative or Litigation Friend if they are partly responsible for constituting a Deprivation of Liberty?

SCC v MSA & Another (2017) EWCOP 18

This case looked at the issues of where a Protected Party’s mother should act as his Rule 3A representative, in light of the fact that she was the person responsible for implementing a restrictive care regime that constituted a deprivation of liberty.

Background

The SCCG commissioned a care package to MSA who was a young adult with severe learning disabilities and was deprived of his liberty at his family home. The Court had previously authorised that it was in MSA’s best interests to reside at home and receive the  care package. MSA was recorded as;

“unable to communicate or mobilise independently, is frequently strapped into his wheelchair, is kept for some of the time in a padded room at his home with a closed door that he cannot open, is highly resistive to personal care interventions so that physical restraint is required, and does not have external carers in the home.”

The issue that arose during the proceedings, was whether MSA’s mother, JA could or should act as his 3A Representative. The Official Solicitor (OS) submitted at a hearing on 23 March 2017, that it would be inappropriate for MSA’s representative in these proceedings and any future proceedings to be the person responsible for implementing a restrictive care regime that constituted a deprivation of liberty, where the arrangements surpassed 24 hour supervision.

Written submissions were filed by both parties and the Court agreed to consider the appropriateness of JA acting as his litigation friend. It is worth noting here, that JA did not wish to be appointed, the OS had raised the issue and guidance on the matter was sought.

Court of Protection Rules 2007

Rule 3A, requires the Court to consider in each case how best to ensure the Protected Party’s participation in proceedings was assured.

Rule 3A(2)(c) ” P’s participation should be secured by the appointment of a representative whose function shall provide the Court with information as to the matters set out in s4(6) of the Act and discharge functions as the Court may direct.

Rule 147 states “A person may act as an accredited legal representative or representative for P, if that person can fairly and competently discharge his or her functions on behalf of P.”

Rule 148B provides the Court with the power to prevent a person from acting  or terminate an appointment of a person as a litigation friend

Rule 140(1) states that a person may act as a litigation friend for P if that person,

  1. A) fairly and competently conduct proceedings on behalf of that person, and
  2. B) has no interests adverse to those of that person

The OS stated that it would not be appropriate to appoint a family member who who supported the deprivation of the Protected Party’s liberty as being in his best interests, as it would be difficult for them to challenge the deprivation due to a conflict of interest. Especially in this case, as the Protected Party was locked in a padded room at times and had to be physically restrained in a wheelchair.

The CCG argued that JA could undertake the role as she was engaged with statutory services and care providers and had a history of acting as the Protected Party’s advocate. They also stated, that there was no rule which prohibited a family member from acting.

District Judge Bellamy stated the following would need to be considered;

  1. a) Whether or not a family member or friend who is responsible in part for implementing a restrictive care arrangement is appropriate to be representative or litigation friend is fact and case specific
  2. b)The Court will have close regard to the relationship between the family member and the Protected Party
  3. c)The conduct, if any of the family member and any available evidence that he or she has acted otherwise in accordance with Rule 140(1) or Rule 147
  4. d)The Court must consider the nature of the restrictive care package and the role that the family member would play in the regime

An agreement with the OS in terms of where a family member is responsible for providing care that includes restrictive physical interventions, the Court should take great care in exercising its discretion as regard to the Protected Party’s representation in proceedings pursuant to Rule 3A. However, it would go no further than that and if a family member who was so involved put themselves forward to act as a representative or litigation friend, providing that all circumstances were scrutinised, there could be no blanket objection in principle, to undertake the role.

The Court must be satisfied that the representative can,

1.i) Elicit P’s wishes and feelings in accordance with s4(6) of the MCA known to the Court without causing any unnecessary distress to the Protected Party

2. ii) Critically examine from the Protected Party’s perspective their best interests, the pros and cons of the care package and whether it was the least restrictive option

3.iii) Review the implementation of the care package

Therefore, it was determined that providing the Protected Party’s Rights under Article 5 were adequately protected and the Court were satisfied, the role could be undertaken by a family member. In my opinion, this appears reasonable, as the family member may actually be the best person to represent the Protected Party as they have a personal connection and will more often than not understand from the Protected Party’s point of view as to what would be in their best interests.

In this case, as JA did not want to act as litigation friend, the OS would continue with the appointment.

If you require any further information, please contact; Danielle.walker@clarionsolicitors.com

 

The Liberty Protection Safeguards and the repeal of DoLS

The Deprivation of Liberty Safeguards (DoLS), the framework which provides authorisation of restrictions of an individual’s freedom, look set to be repealed and replaced by a new scheme called the ‘Liberty Protection Safeguards’.

A House of Commons Library briefing paper has raised the actions recommended by the Law Commission’s report, published in March 2017, advocating the urgent repeal of the controversial rules that were introduced into the Mental Capacity Act in 2009.

DoLS provide a six-tiered statutory framework for the approval of a deprivation in situations where a person lacks mental capacity to consent to their care arrangements, and it is deemed that it is in the best interests of the patient to restrict their freedom.

A Supreme Court judgement in the case of P V Cheshire West & Cheshire Council [2014] changed the definition of a deprivation of liberty, thus increasing the volume of individuals determined to have their liberty deprived. As a consequence of this judgement, the number of DoLS applications has increased ten-fold, the implications and repercussions of which have been significant for social care practitioners and local authorities.

The new Liberty Protection Safeguards intend to ‘streamline the process for assessing whether a deprivation of liberty is necessary’ as well as increasing the efficiency of the authorisation process. The new safeguards would also apply to a broader group of people than those currently covered by DoLS, which only apply to deprivations in care homes and hospitals. Furthermore, 16 and 17-year-olds will now be protected under the new legislation.

Best Interests Assessors are expected to be replaced by an ‘Approved Mental Capacity Professional’ (AMCP) and the requirement for a best interests assessment in every case will be removed, with the focus of the thorough assessments shifted to only the more ‘serious’ cases whereby the care arrangements are contrary to the wishes of the patient.

When a possible deprivation is identified, the responsible body (usually the local authority) will be required to arrange a medical and capacity assessment, before considering whether the proposed care placement is necessary and proportionate. The case will be then considered by an ‘independent reviewer’, who is not involved in the patient’s care. If the conditions are considered to be met, the deprivation will be approved; if there are concerns regarding the placement however, the case will be referred to an AMCP.

The Law Commission report states that the new scheme will offer ‘further protection to people who object to their proposed placement’, while increasing the efficiency of the process and striking a ‘proportionate balance between responding efficiently to the volume of cases requiring authorisation since Cheshire West and giving proper safeguards to people whose objections are too easily over-ruled under the current law.’

The Government is due to publish its response to the recommendations.

If you have any queries, please do not hesitate to contact Ethan Bradley (ethan.bradley@clarionsolicitors.com) or the team at COPCosts@clarionsolicitors.com.

 

Deprivation of Liberty Proceedings on behalf of a minor [2017] EWHC 2458 (Fam)

The Local Authority made an Application for permission to deprive the Protected Party (a minor) where there was no secure accommodation available.

The Protected Party was a 13 year old child and had a background of very serious uncontrollable behaviour which had resulted in damage to himself and others. As a result, he had been placed in over six different accommodations for his own and others’ safety. There were a number of occasions where the staff were unable to manage his behaviour or keep themselves and the Protected Party safe.

The Local Authority had repeatedly expressed their wishes to place the Protected Party in an approved secure placement, however these were rare and they were unable to find a suitable home. As a result, they had hoped it would have been possible to place him in a unit which was not deemed an approved secure accommodation. A plan was put in place that meant the Protected Party would stay at the accommodation and if necessary, be subject to considerable restraint, including physical restraint, solely for the purpose of keeping him safe.

Section 25 of the Children Act 1989 makes express and detailed provision for the making of what are known as Secure Accommodation Orders. Such Orders may be made and, indeed, frequently are made by Courts. It is not necessary to apply to the High Court for a Secure Accommodation Order, however, as there was no approved secure accommodation available, the Local Authority required the authorisation from a Court for the Deprivation of Liberty that the Protected Party would be subjected to.

Mr Justice Holman delivered his concern over the way in which applications of this kind were handled, saying that “the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. There is a grave risk that the safeguard of approval by the Secretary of State is being denied to some of the most damaged and vulnerable children. This is a situation which cannot go on, and I intend to draw it to the attention of the President of the Family Division.”

The Judge ordered that the child now be joined as a party to these proceedings and a guardian must be appointed to act on his behalf. A further hearing was fixed for a months time, as the Judge was concerned the Protected Party had been deprived of his liberty for the past 3 months. The Judge advised further “in view of the gravity of the subject matter and the age of the child, I propose to order that he must be enabled to attend the hearing if he expresses a wish to do so unless the guardian states that in his opinion it would be damaging to the health, wellbeing or emotional stability of the child to do so. In my view it is very important that ordinarily in these situations, which in plain language involve a child being ‘locked up’, the child concerned should, if he wishes, have an opportunity to attend a court hearing. The exception to that is clearly if the child is so troubled that it would be damaging to his health, wellbeing or emotional stability to do so. But subject to that exception, if a child of sufficient age, which includes a child of this or any older age, wishes to attend a hearing of this kind, then in my view he must be enabled to do so.”

If you have any queries, please do not hesitate to contact Georgia Clarke or the team at COPCosts@clarionsolicitors.com

Revocation of the financial Deputy’s responsibility in a case concerning deprivation of liberty and care arrangements- is this fair?

Temperley Taylor are considering appealing a Court of Protection ruling that revoked the financial Deputy’s responsibility to act on behalf of the Protected Party in a case concerning deprivation of liberty and care arrangements.

In Mrs P v Rochdale Borough Council and NHS North, Central and South Manchester Clinical Commissioning Groups [2016] EWCOP B1, District Judge Ranj Matharu made a judgment stating that the firm was not acting in the Protected Party’s best interests and criticised the “brutal and insensitive” comments made in relation to the Protected Party’s requests.

The background of the case was explained to the court and the court was informed that the Protected Party lacked capacity to make decisions regarding where she resided. Despite her care being fully funded by the local Clinical Commissioning group, the Protected Party had a number of underlying ‘challenging behaviours’  throughout her time in care. The Protected Party had a substantial level of money and therefore it was found that her standard and quality living arrangements could be improved by using those funds.

An application had been made for the Managing Partner of Temperley Taylor to be appointed as Deputy in respect of the Protected Party’s financial and property affairs, an Order was made in March of this year as she had been a “long standing client and the firm held her will”.

A number of requests were made with regards to the reappraisal of the Protected Party’s needs and funds were requested to improve her diet and purchase new clothes. She had made it clear that she had specific dietary requirements and her only enjoyment in life came from the company of her dog, who had been re-homed. “Being in the presence of other dogs made her “face light up” and it was evidential that this improved the quality of life.” The court found that these factors were not addressed following a number of assessments of her care plan.

DJ Matharu highlighted his suspicion and curiosity in relation to the Protected Party’s finances. The Protected Party’s account held a nil balance, when a year previously it was recorded that she had £7,000.00, yet there was little evidence that these funds were provided to purchase more varied food and clothing. DJ Matharu further said that this financial information was “troubling” and an understatement if that.”

The delay in establishing Mrs P’s financial position is inexplicable,’ the judgment stated. ‘In fact, it is entirely unclear on what basis they consider the steps they have taken to be in her interests. Their sole focus should and can only be Mrs P, yet they appear to be working against the litigation friend and not with them.’

Temperley Taylor highlighted their opinion in an email to Switalskis that it “would seem irresponsible in the extreme to suggest that a dogs visits a care home for elderly and frail people”.

Thereafter the Order was revoked, as the Court was satisfied that Temperley Taylor were not acting in the Protected Party’s best interests.

The firm has stated that they are “actively considering an appeal against the judgment.”

If you have any queries or general questions, please do not hesitate to get in touch and we would be more than happy to assist you. Please contact CopCosts@clarionsolicitors.com or call 0113 246 0622.

Should the additional liabilities be included in the budget to allow the proportionality test to be applied correctly?

Following the case of BNM v MGN Ltd (3rd June 2016) where it was found that the after the event insurance should be taken into account when assessing whether the costs were reasonable and proportionate, should the additional liabilities now be included in the budget to ensure that the proportionality test is applied properly at the budget stage?

According to the recent decision in  Various Claimants v MGN Ltd (21st July 2016) the Defendant accepted that under CPR, the Claimants are not obliged to disclose the amount of the success fee or ATE insurance as this could reveal the prospects of success. However, they referred to the case of  BNM v MGN Ltd (3rd June 2016) and argued that to enable the court to assess the reasonableness of the budget and apply the proportionality test then the additional liabilities now needed to be included in the budget.

Despite the court recognising that by taking into account the additional liabilities this allows a prospective view of proportionality, rather than a retrospective view, thus fulfilling the courts costs management duties, the court disagreed with the Defendant, referring to the provisions within the CPR, specifically the precedent H form and the precedent H guidance notes, concluding as follows:

  • I do not consider that the apparent change in the approach to proportionality on assessments (if there is one) means that there should be a change to the approach on the occasion of budgeting. The reasons for this are based on both the provisions of the rules and the Practice Direction and on the practicalities.
  • The provisions for costs budgeting are to be found in Part II of CPR 3. The procedures are dealt with in Practice Direction 3E. Paragraph 2(a) requires the court to have regard to the overriding objective and paragraph 6(a) provides:

“Unless the court otherwise orders, a budget must be in the form of Precedent H annexed to this Practice Direction.”

  • The first page of that precedent contains a summary which is amplified in the following pages. Below the summaries of costs under various headings there is included the following wording:

“This estimate excludes VAT (if applicable), success fees and ATE insurance premiums (if applicable), costs of detailed assessment, costs of any appeals, costs of enforcing any judgment and [complete as appropriate]”

Therefore, in light of the emerging case law on proportionality, the approach to the inclusion of additional liabilities remain the same and should be excluded from the precedent H.

Sue Fox is the Head of Costs Budgeting in the Costs and Litigation Funding department at Clarion Solicitors. You can contact her at sue.fox@clarionsolicitors.com and 0113 336 3389, or the Clarion Costs Team on 0113 246 0622.