Re JDO (authorisation of deprivation of liberty) [2019] EWCOP47

https://www.bailii.org/ew/cases/EWCOP/2019/47.html

This case relates to an application by a local authority to seek the court’s authorisation to deprive JDO of his liberty in a community setting. Because JDO lives in supported accommodation rather than a hospital or care home, the local authority is unable to use the Deprivation of Liberty Safeguard procedures set out in Schedule 1A Mental Capacity Act 2005 to grant a standard authorisation for the deprivation.

After the definition of what a constitutes a ‘deprivation of liberty’ was widened following the 2014 Supreme Court judgment in the Cheshire West case, the Court of Protection president devised a procedure to allow uncontroversial deprivation of liberty cases to receive judicial attention, but to do so using a ‘streamlined’ procedure (also known as the Re X procedure) which does not usually require a formal hearing.

In JDO’s case, the Court had previously authorised his deprivation of liberty in mid-2017, and the local authority applied for his care package and living arrangements to be authorised once again in November 2018. However, it failed to disclose in the documents that it put before the Court that there was reason to believe that the Official Solicitor (who had been appointed as JDO’s litigation friend in separate clinical negligence proceedings) and JDO’s parents were concerned about whether his living arrangements were in fact the least restrictive possible, and in his best interests.

Not only had the local authority failed to disclose letters to it from the Official Solicitor which the OS had specifically asked to be included in the application, JDO’s parents had at another point initially declined to sign a statement in which his mother agreed to act as his rule 1.2 representative (broadly equivalent to a litigation friend).

Senior Judge Hilder agreed with the Official Solicitor’s concern that, in issuing the application under the streamlined procedure, the local authority demonstrated a serious breach of the duty of full and frank disclosure which is part of that procedure, and enshrined in the relevant practice direction.

Rejecting the local authority’s argument that the Official Solicitor need not have been consulted, and that an independent litigation friend was more appropriate, SJ Hilder concluded that it had been inappropriate to use the Re X procedure, that it is not open to the local authority to bypass the need to consult with JDO’s primary carer and that to suggest that the applicant is not required to disclose different opinions when they are not in the applicant’s view “based in fact” is “to misunderstand the duty of full and frank disclosure fundamentally”.  Nor did the local authority’s suggestion that as the residential college placement that the Official Solicitor favoured was not at that point an alternative option to the care plan put before the Court, it did not need to mention this in the application documents. SJ Hilder agreed that if the duty of full and frank disclosure only applied to cases where an “immediately available” alternative has been identified, then as this is usually the local authority’s responsibility to find, its failure to do so could not mean that concerns about a placement by family members or others would not need to be drawn to the attention of the court.

Noting that the Re X procedure was designed to be a proportionate and efficient way for the state to meet its obligations, SJ Hilder observed that “practicality is clearly to be the servant of compliance with obligations, and not the other way round”, and that any applicant for authorisation under the streamlined procedure must “proactively inform the court of contrary views.”

SJ Hilder also called for the local authority to examine critically JDO’s mother’s supposed change of mind regarding her appointment as his rule 1.2 representative for her son, and deprecated the use of a standard, pre-printed witness statement due to the risk that someone in the mother’s position could be “overwhelmed by formality and procedures.”

Learning points

While the details of the Re X procedure are of most relevance to local authorities, this judgment is a useful illustration of what the Senior Judge expects of parties who are required to give full and frank disclosure in Court of Protection proceedings, for whom it is “incumbent on those charged with the obligation to consult… [to] take appropriate steps to ensure that genuine views are obtained and reported.”

There is also a caution against any party with consultation obligations (such as a deputy or attorney) to “present” others with pre-prepared statements, since the purpose of consulting is to ascertain that person’s views, so that they can be relayed to the court, rather than to put words in their mouths, or to persuade them to adopt the applicant’s views.

(Author: Carol McBride)