Bridget Dolan QC (for the Official Solicitor) and Conrad Hallin (for the five applicants) both appeared in Re JM and others [2016] EWCOP 16, the landmark Court of Protection test case further dealing with the fall-out from the Supreme Court decision of Cheshire West and following on from Re X and Re NRA.
The Vice President of the Court of Protection considered a group of cases where the person lacking capacity is receiving a care package in the community that amounts to a deprivation of their liberty and that person has no family member or friend involved in their care.
The Vice President held that in such cases, where the applicant public body deemed the care package to be uncontroversial, an application for authorisation by the court on the papers (adopting the streamlined “re X procedure”) would not meet the minimum requirements of Article 5: some independent monitoring of the care package on the ground was necessary.
Where, as in four of these test cases, no family member or friend was available to act as a “Rule 3A representative”, an independent advocate could, theoretically, fulfil such a role. However unless there was funding provided for an independent advocate one would not be practically available, and the person deprived of liberty therefore would be left without any practical or effective protection of their Art 5 rights.
The Vice President found that local authorities and CCGs are not required to provide or fund such independent Rule 3A representatives and the responsibility for this, or some other Article 5 compliant monitoring on the ground, ultimately lay at the feet of central government. It was not for central government to “pass the parcel” to local authorities and CCGs.
The case has been widely reported.
