Participation of PParticipation of P:recent developmentsParticipation of PJoining P to proceedings:decisions of ECT HRJoining P to proceedingsParticipation of P:recent developmentsParticipation of PJoining P to proceedingsParticipation of P:menu of optionsParticipation of PJoining P to proceedingsParticipation of P:menu of optionsParticipation of PJoining P to proceedingsParticipation of P:menu of optionsParticipation of PJoining P to proceedingsParticipation of P:practice directionsParticipation of P:menu of optionsParticipation of PJoining P to proceedingsParticipation of P:menu of optionsParticipation of P:litigation friendParticipation of PJoining P to proceedingsParticipation of P:menu of optionsParticipation of P:litigation capacityParticipation of PJoining P to proceedingsParticipation of P:menu of optionsParticipation of P:litigation capacityParticipation of PJoining P to proceedingsParticipation of P:menu of optionsParticipation of P:childrenParticipation of PJoining P to proceedings
Background
11.4By 2014, the participation of P had become a particular issue for two main reasons:
•A line of cases decided in the European Court of Human Rights
1X and Y v Croatia (App No 5193/90, decision of 3 November 2011), Shtukaturov v Russia (App No 4409/05), [2008] ECHR 223 and Lashin v Russia (App No 33117/02, decision of 22 January 2013). See also, subsequently Ivinovic v Croatia (App No 13006/13, decision of 18 September 2014) and AN v Lithuania (App No 17280/08, decision of 31 May 2016). See also the paper by Lucy Series entitled ‘The participation of the relevant person in proceedings before the Court of Protection’ available at http://sites.cardiff.ac.uk/wccop/files/2014/09/Briefing-on-Personal-Participation-in-the-CoP-v1-2.pdf. had made it increasingly clear that the proper participation of the subject of proceedings for declarations as to their capacity was necessary so as to secure their rights under both Articles 6 and 8 of the European Convention on Human Rights (ECHR);
•More pressingly, the decision of the Supreme Court in
Cheshire West2[2014] UKSC 19, [2014] COPLR 313, (2014) 17 CCLR 5. (see further para 21.3) led to a perception that there would be an enormous increase in the number of applications to the Court of Protection for judicial authorisation of deprivations of liberty outside care homes and hospitals. The question then arose as to whether the person concerned had to be a party to such proceedings in all cases and, if they were not to be a party, how their participation could be sufficiently ensured so as to secure their rights under Article 5 ECHR. How the courts then grappled with that issue is addressed further in chapter 21.
11.5The ad hoc Rules Committee which met in late 2014/early 2015 with a remit to focus upon the most pressing issues that had been identified as requiring changes in the practice and procedures of the Court of Protection therefore devoted the majority of its energies to addressing the participation of P.
3For more detail of the background to the amendments, see Alex Ruck Keene, The next stage of the journey – the Court of Protection (Amendment) Rules 2015 [2015] 2 Eld LJ 150. The result was therefore what is now COPR Pr1.2/COPR r3A.
The menu of options
11.6The participation of P is now provided for in COPR Pr1.2/COPR r3A.
4The accompanying Practice Direction is PD Pilot 1A/PD 2A. This rule, which came into force on 1 July 2015, requires in each case the court to consider, either on its own initiative or on the application of any person, whether it should make one or more directions relating to P’s participation set down in a ‘menu’ provided by the rule. Consideration of P’s participation is expressly required at the first case management hearing for cases falling under the personal welfare pathway under the Case Management Pilot (see para 10.19).
11.7The menu of options for P’s participation includes:
•P being a party;
5COPR Pr1.2(2)(a) / COPR r3A(2)(a). •P’s participation being secured by the appointment of an ALR to represent P in the proceedings and to discharge such other functions as the court may direct. The position of such ALRs is considered at paras 11.84–11.114 below;
6COPR Pr1.2(2)(b) / COPR r3A(2)(b). •P’s participation being secured by the appointment of a representative whose primary function is to give P a ‘voice’ by relaying information as to P’s wishes and feelings. The position of such representatives is considered at paras 11.74 below;
7COPR Pr1.2(2)(c) / COPR r3A(2)(c). •specific provision for P to address (directly or indirectly) the judge determining the application;
8COPR Pr1.2(2)(d) / COPR r3A(2)(d). or
•no direction or an alternative direction (meeting the overriding objective) if P’s interests and position can properly be secured.
9COPR Pr1.2(2)(e) / COPR r3A(2)(e). 11.8Which of the directions set out above is made is a decision for the court having regard to (a) the nature and extent of the information before the court; (b) the issues raised in the case; (c) whether a matter is contentious; and (d) whether P has been notified in accordance with the provisions of Part 7 of the COPR (see further para 7.30) and what, if anything, P has said or done in response to such notification. In practice, a further important consideration is the limited availability of funding for representatives (of whatever kind). This has become a particular issue in relation to applications for authorisation of deprivation of liberty, and is addressed further in chapter 21.
11.9Practice Direction Pilot 1A/PD 2A, which accompanies these provisions, envisages that in many cases no sort of representative will be needed because these are non-contentious property and affairs cases and ‘experience has shown that they can be dealt with on paper and without joining P as a party or appointing anyone to represent P’.
10Pilot PD1A / PD 2A para 3. The practice direction comments that as a result of COPR Pr1.2/COPR r3A the court ‘is both enabled and required to tailor the provision it directs for P’s participation and representation to the circumstances of the individual case’.
11Pilot PD1A / PD 2A para 6.11.10Where P is to be a party and does not have capacity to conduct the proceedings, the court must either appoint a litigation friend to act on their behalf,
12COPR Pr1.2(4)(a) / COPR r3A(4)(a). or appoint an ALR to act without a litigation friend being appointed to act for P.
13COPR Pr1.2(2)(4)(b) / COPR r3A(4)(b). The appointment and duties of litigation friends are considered at paras 11.26–11.48 below; the appointment and duties of ALRs are set out at paras 11.84–11.100 below. An order joining P as a party will only take effect where either a litigation friend or an ALR has been appointed.
14COPR Pr1.2(4) / COPR r3A(4). If the court has directed that P should be joined as a party but it has not taken place because no litigation friend or ALR has been appointed, the court must record in a judgment or order the fact that one has not been appointed, and the reasons given as to why not.
15COPR Pr1.2(5) / COPR r3A(5). This is designed to ‘flush out’ situations in which funding has not been forthcoming to enable such appointments to take place.
11.11In deciding whether P has capacity to conduct the proceedings (often called ‘litigation capacity’), the court will apply Mental Capacity Act (MCA) 2005 ss2–3. A detailed examination of the issue of litigation capacity lies outside the scope of this work.
16For a more detailed discussion, see chapter 8 of the Law Society/British Medical Association’s Assessment of mental capacity: a practical guide for doctors and lawyers, 4th edn, 2015. In summary, however:
•the test that the court will apply is that under MCA 2005 ss2–3 (see further paras 3.33 onwards), which means – importantly – that it must have regard to the principles of the presumption of capacity and that all practicable support must have been given to the person without success before they can be found to lack capacity. What this means in practical terms for those representing P is set out in the guide at the end of this chapter.
•In applying that test, the court will have regard to cases decided under the common law as to the key
information that the person must be able to retain, understand, use and weigh. In particular, in
A, B and C v X and Z,
17[2012] EWHC 2400 (COP), [2013] COPLR 1. Hedley J considered that the ‘heart of the test’ were the observations of Chadwick LJ at para 75 of
Masterman-Lister18Masterman-Lister v Brutton & Co, Masterman-Lister v Jewell and another [2002] EWCA Civ 1889, [2003] 1 WLR 1511, (2004) 7 CCLR 5. The approach adopted in Masterman-Lister was endorsed by the Supreme Court in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] WLR 933, (2014) 17 CCLR 203. that:
[T]he test to be applied, as it seems to me, is whether the party to the legal proceedings is capable of understanding, with the assistance of proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law – whether substantive or procedural – should require the interposition of a next friend.
19A, B and C v X and Z [2012] EWHC 2400 (COP), [2013] COPLR 1, para 42.11.12Three points are particularly important when it comes to considering litigation capacity:
•the question of capacity to litigate is not something to be determined in the abstract: it is always necessary to ask whether P has the capacity to litigate in relation to the particular application before the court.
20Sheffield City Council v E and another, para 38. •P may well have capacity to conduct the proceedings even though it is asserted that they do not have capacity to make the decisions in question.
21See, for instance Re SB [2013] EWHC 1417 (COP), [2013] COPLR 445 and KK v STCC [2012] EWHC 2136 (COP), [2012] COPLR 627, both cases in which the court ultimately held that the person did have the capacity to make their own decisions. The position where P, in fact, has capacity to conduct the litigation although they do not have the capacity to take the decisions in issue is discussed further at para 11.53 onwards. Whilst possible, the converse situation – ie that P
has litigation capacity but lacks the capacity to make the underlying decisions – is not common in practice.
22For an example of the case where the person was held to have litigation capacity whilst ultimately being found to lack subject-matter capacity, see Islington LBC v QR [2014] EWCOP 26, (2014) 17 CCLR 344. •P may well have capacity to wish to challenge a decision but lack the capacity to conduct the entirety of the consequent proceedings.
23See, by analogy, Hillingdon LBC v WW (Special Educational Needs: Other) [2016] UKUT 253 (AAC), para 8, distinguishing capacity to appeal from capacity to make other decisions to be made in the course of proceedings. This is particularly relevant in the context of applications under MCA 2005 s21A, discussed further in chapter 21.
11.13Where P is a child,
24MCA 2005 provides for the Court of Protection to make certain types of decision in respect of those between the age of 16 and 18, and indeed, in respect of those below 18, to make any decision relating to P’s property and affairs save for the making of a will, if the court considers it likely that P will still lack capacity to make decisions in respect of that matter when he reaches 18: MCA 2005 ss2(5) and 18(3). it is suggested that the court should approach that child
as if they were an adult P for the purposes of deciding their capacity to conduct the proceedings and therefore apply the capacity test set down in MCA 2005 ss2–3. The child may, though, be unable to take the decision (or litigate in respect of that decision) not because they have a material impairment in the functioning of their mind or brain but because they are not ‘competent’: ie applying the test set down by the House of Lords in the case of
Gillick,
25Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7, [1986] 1 AC 112. they do not have sufficient maturity and intelligence to understand the nature and implications of the proposed decision.
26[1986] 1 AC 112 at 189 per Lord Scarman. For a more detailed discussion of the position of children potentially subject to the MCA 2005, see Ashton et al, Court of Protection Practice 2016, Jordans, paras 2.92–2.94. In such a case, if relief is required from a court, then that court is not the Court of Protection, but, depending on the precise nature of the relief sought, then either the Family Court or the Family Division of the High Court. This is not addressed further here.
27For more on decision-making and remedies in relation to children, see chapters 7 and 11 respectively Broach et al, Disabled Children: a legal handbook, Legal Action Group, 2nd edition, 2016, also available (free) online at www.councilfordisabledchildren.org.uk/11566.