‘Re X ’ applicationsRe X applicationsRe X applicationsRe X applicationsRe X applicationsRe X applicationsRe X applicationsRe X applications:characteristicsRe X applicationsRe X applications:makingRe X applicationsPractice Guidance:Court of Protection Practice Direction 10AA:Pt 2Pt 2Re X applications:makingRe X applicationsRe X applications:makingRe X applicationsRe X applications:makingRe X applicationsRe X applications:procedural mattersRe X applications:orderRe X applications:makingRe X applications:court consenting to arrangementsRe X applications:court can in principle make orderRe X applications:ancillary mattersRe X applicationsRe X applications:procedural mattersRe X applications:makingRe X applicationsRe X applications:procedural mattersRe X applications:makingRe X applicationsPractice Guidance:Facilitating the participation of ‘P’ and vulnerable persons in Court of Protection Proceedings (November 2016):para 41Re X applications:procedural mattersRe X applications:makingRe X applicationsRe X applications:procedural mattersRe X applications:makingRe X applicationsPractice Guidance:Facilitating the participation of ‘P’ and vulnerable persons in Court of Protection Proceedings (November 2016):para 47Re X applications:service of orderRe X applications:procedural mattersRe X applications:makingRe X applicationsPractice Guidance:Facilitating the participation of ‘P’ and vulnerable persons in Court of Protection Proceedings (November 2016):para 48Re X applications:procedural mattersRe X applications:makingRe X applications
21.56Certain applications to the Court of Protection are referred to as ‘
Re X applications’, after the series of cases under that name.
1Re X [2014] EWCOP 25, [2015] 1 WLR 2454, (2014) 17 CCLR 297; Re X [2014] EWCOP 37, [2015] 1 WLR 2454, (2014) 17 CCLR 464 and Re X (Court of Protection Practice) [2015] EWCA Civ 599, [2016] 1 WLR 227. These are uncontentious applications for welfare orders under MCA 2005 s16, authorising the deprivation of P’s liberty in settings where the DOLS regime cannot be used. They follow a ‘streamlined’ procedure, which is excluded from the Case Management Pilot.
2Case Management Pilot PD para 3.1(e). Such a process was considered to be necessary in the aftermath of the
Cheshire West judgment which, as we have seen, increased the cohort of those whose circumstances engaged Article 5.
3Although the numbers have not been as great as had been predicted: see Re JM and others [2016] EWCOP 15, [2016] 4 WLR 64 para10.21.57There has been significant litigation as to how P’s interests are properly protected during the course of the application. In addition to the three
Re X cases,
Re NRA4Re NRA and others [2015] EWCOP 59, [2015] COPLR 690, (2015) 18 CCLR 392. and
Re JM5Re JM and others [2016] EWCOP 15, [2016] 4 WLR 64. consider in depth the essential requirements for a procedure which complies with Article 5. For a more detailed analysis of these cases readers are referred to articles in
Legal Action in January 2016
6Sophy Miles, ‘Court of Protection update’ Dec 2015/ Jan 16 Legal Action 28. and June 2016.
7Sophy Miles, ‘Court of Protection update’ June 2016 Legal Action 29.21.58Cases where a Re X application may need to be made could include cases where P is living in one of the following settings:
•supported living placements;
•extra care housing;
•adult foster placements; or
•care packages delivered to P in his or her own home (including those that are fully funded by P).
21.59If P is 16 years old or over, lacks capacity to consent to his or her care arrangements, and his or her care package amounts to a deprivation of liberty for the purpose of Article 5, then authorisation will need to be sought from the Court of Protection. Without such authorisation, P is at risk of arbitrary detention, in violation of his or her Article 5 rights, which may lead to liability for damages. It is well-established that, except in emergencies, the authority to detain must be sought before the deprivation of liberty starts.
8See by analogy Re AJ at para 133. Failure to do so will result, at least, in a procedural breach of Article 5(1).
21.60A full examination of all the circumstances in which Article 5 is engaged – and when applications to court should be made – is beyond the scope of this chapter. Nor does this chapter consider the position of those under 16, because the Court of Protection will not have jurisdiction over those aged 15 and below. However it is important to stress that the responsibility to seek authorisations is not limited to cases where P’s care is arranged or commissioned by a public body. P’s deprivation of liberty can be attributable to the State in any case where the State knows or ought to know of ‘the situation on the ground’.
9Staffordshire County Council v SRK (by his litigation friend SK) and others [2016] EWCOP 27, under appeal at the time of writing. If a local authority or other statutory body is in any doubt as to whether an application should be made in a particular case, specialist legal advice should be sought as a matter of urgency.
21.61The next important point is that ‘
Re X’ applications are only appropriate where there is no dispute as to whether P’s care arrangements are in P’s best interests and the least restrictive alternative, either from P or from any other person.
10See Re NRA, para 37. If such a dispute exists then an application should be made for a welfare order, using COP1, and following the requirements of the Case Management Pilot. The procedure for such cases is addressed in chapter 9.
21.62The Re X process has the following characteristics:
•it is paper-based and unlikely to involve an oral hearing;
•P will usually not be a party but will instead require a representative appointed under COPR Pr1.2/ COPR r3A.
11For a full account of the role of such representatives, see paras 11.74 onwards. There is no reason in principle, why P cannot be joined and a litigation friend be appointed for purposes of an application under the
Re X process, but the case-law subsequent to
Re X itself has made clear that the court will strive to avoid this outcome;
•any order made by the court will be time-limited and will be subject to further review.
Making an application
21.63To make an application the applicant will have to consider:
•Practice Direction 10AA Part 2;
•Form COPDOL10 (which can be found in an unofficial Word version on the Court of Protection Handbook website), its annexes and guidance;
•The judgment of Charles J in
Re VE12Re VE [2016] EWCOP 16, [2016] 4 WLR 64., a case linked with
Re JM. Here Charles J provides a helpful precedent of a letter that should be sent to the Rule 3 A representative, explaining what is expected;
•The
Re X ‘Model Order’, which must be completed. A Word version of the order can be found on the Court of Protection Handbook website.
13https://courtofprotectionhandbook.com/precedents/. 21.64At the time of writing, a new COPDOL10 form is in preparation. The updated version will be found at www.courtofprotectionhandbook.com when it is published.
21.65The Practice Direction is comprehensive and explains exactly what is required in the application. The form COPDOL10 prompts the applicant to address the evidence which the court will need. In Re NRA, Charles J approved the form but suggested a number of improvements, in particular by way of additional information. This means that it is now no longer possibly easily to fit the information into the COPDOL10 form as it stands at the time of writing. Pending revision of that form, and as it no longer addresses all the issues that need to be covered, we suggest that it will make the judge’s life considerably easier if: the (1) COP DOL10 form is simply used as a procedural vehicle (ie it is only completed so as to give the necessary names and other procedural matters); (2) that in all places where ‘real’ questions are asked (eg as to the care arrangements), the box is completed ‘please see attached grounds’; and (3) that all substantive matters that need addressing are set out in a separate document entitled ‘grounds.’ The maker of the main witness statement in support of the application should then attest to the factual accuracy of the grounds.
21.66It is important to appreciate that the applicant is asking the Court of Protection, by making an order under MCA 2005 s16(2)a), both to consent on P’s behalf to living at the placement identified to receive care, and to authorise confinement there. The judge must therefore be satisfied that the arrangements are in P’s best interests before they can consent to them.
21.67Taking the judgment in
Re X together with the COPDOL10 form and the additional requirements set down by Charles J in
Re NRA means that the application needs to answer a substantial number of matters, either in the body of the form or in attached documents. We set them out below, re-ordered so as to place them in a logical order, and also amplified where necessary by reference to other relevant case-law.
14This draws upon the guidance note prepared by Alex Ruck Keene, Tor Butler-Cole, Neil Allen and Michelle Pratley of 39 Essex Chambers.The order
A draft of the precise order sought should be provided, including in particular the duration of the authorisation sought and appropriate directions for automatic review and liberty to apply and/or seek a redetermination in accordance with COPR r89. When completing the order, careful thought should be given to the length of the authorisation sought. The maximum length is twelve months but – as in the case of standard authorisations – this should not be requested unless necessary.
15P v Surrey CC and Surrey Downs CCG [2015] EWCOP 54.Evidence required
The applicant will be required to satisfy the court as to the following matters:
That the court can in principle make an order
This will require:
•Proof that P is 16 years old or more and is not ineligible to be deprived of liberty under MCA 2005 (the same eligibility requirements applying in respect of DOLS authorisations). We suggest that this evidence will be of the same nature as that required to allow the supervisory body to be satisfied that the (higher) age requirement under Schedule A1 is met. We would anticipate that stating P’s date of birth would ordinarily suffice. If in doubt, of course check their birth certificate. If there is doubt and no papers – for example in the case of a paperless asylum seeker – a
Merton-compliant age assessment may be required (see
B v London Borough of Merton16[2003] EWHC 1689 (Admin), [2003] 4 All ER 280.).
•The basis upon which it is said that P is of unsound mind (together with the relevant medical evidence). Professional medical opinion is necessary to establish unsoundness of mind but where the facts are clear this need not involve expert psychiatric opinion (there will be cases where a general practitioner’s evidence will suffice). We note that there therefore may well be a difference between (1) ‘standard’ applications to the Court of Protection where a COP3 should be filed setting out the basis upon which it is said that the person lacks capacity to take the relevant decision(s) can be completed by (inter alia) a social worker, and (2) a deprivation of liberty application, where the social worker can complete the evidence as to the lack of capacity to consent, but cannot complete the evidence of P’s unsoundness of mind. We note also that the requirement is of evidence of unsoundness of mind, rather than (as under DOLS) evidence of a mental disorder for purposes of the Mental Health Act 1983, but where a person has a specific diagnosis of a mental disorder, such should be given.
•The nature of P’s care arrangements (together with a copy of P’s care and treatment plan) and why it is said that they do or may amount to a deprivation of liberty. The key restrictive provisions of the care package should be detailed including:
•the level of supervision (1:1, 2:1 etc);
•the periods of the day when supervision is provided;
•the use or possible use of sedation or restraint;
•the use of assistive technology;
•what would happen if P tried to leave; and
•restrictions on contact with others.
•Where any sedation or restraint is being used or may be used, give the details (eg drug name, dose, method of administration especially if covert) and an explanation should be given as to why these are the least restrictive measures to deal with the relevant issues.In Re NRA, Charles J held that the actual care notes can be very informative and their production may obviate the need for a summary or a lengthy summary. The importance of the care plan accurately recording the use of restraint, especially physical restraint, was emphasised by Baker J in Re AJ. Linked to this, because the judge’s main concern is as to what is actually happening on the ground, the care plan that will usually need to be supplied with the application will be the care provider’s care plan, because that will (or should) be detailing what is taking place on a day to day basis. This is to be contrasted with the care and support plan drawn up by the local authority (or NHS body) whose main function is to set out how the person’s assessed needs will be met, and it will often not include the necessary level of detail.The public body making the application will therefore have to make sure that it has obtained (and where necessary worked with the care provider to improve) the care provider’s care plan before making the application so as to ensure that it addresses the matters set out above. Given that a more restrictive care regime will need to be sanctioned by the court, applicants may want to consider incorporating contingency arrangements into the care plan so as to minimise the need for judicial micro-management.
•Whether there has been any recent change or planned change in the care package and the reasons for it.
•The basis upon which it is said that the arrangements are or may be imputable to the state.
•The basis upon which it is said that P lacks the capacity to consent to the care arrangements (together with the relevant medical evidence).
Why the court can consent to the arrangements on P’s behalf as being in P’s best interests
This will require information as to:
•The basis upon which it is said that the care arrangements are necessary in P’s best interests and why the care package advanced is the appropriate one. This will include explanation of why there is no less restrictive option (including details of any investigation into less restrictive options and confirmation that a best interests assessment, which should be attached, has been carried out). It will almost invariably be helpful to include a balance sheet to identify how the best interests decision has been reached. Charles J emphasised in Re NRA that the supporting material here is particularly important because it highlights the core of the decision making process and so the reasons why the court can be satisfied that it can properly consent to the arrangements on P’s behalf in their best interests.
•Any evidence of conflicting interests within the same placement. This is particularly important in supported living placements because, as Charles J noted in Re NRA, in any one supported living placement there can be a number of service users and the demands of the care package for one service user can impact on the others.
•If the proposed placement is planned and has not yet taken place, an explanation of whether or not a transition plan has been produced, a copy of the transition plan and an explanation as to how the placement will be reviewed, particularly in the context of responding to P’s reaction to his or her new placement.
•If P is already living at the placement, information about the date P moved there, where he or she lived before, why the move took place, and how the move is working.
•The steps that have been taken to notify P and all other relevant people in P’s life (who should be identified) of the application and to canvass their wishes, feelings and views.
•Any relevant wishes and feelings expressed by P and any views expressed by any relevant person.
•Details of any relevant advance decision by P and any relevant decisions under a lasting power of attorney or by P’s deputy (who should be identified).
Ancillary matters about the arrangements
•If there is a tenancy agreement, the applicant should provide clarification of who has the authority or needs to apply for the authority to sign it on P’s behalf.
Procedural matters relating to the application
The application will also need to address:
•P’s eligibility for public funding. This means providing any details that are available as to P’s savings and income, and details of any person (for instance a property and affairs deputy) who may be able to assist providing details of P’s means.
•Whether or not it is thought the case is controversial and can be dealt with without an oral hearing and, if so, the reasons why.
•Information about the participation of family and friends over the years including (1) the nature of the care and support they have provided, (2) their approach to issues relating to the provision of care and support in the past and (3) whether and why it is thought that family or friends have provided and will provide balanced support for P in his or her best interests.
•Whether P’s family and friends support P’s care package and the reasons why or why not.
•Whether a family member or friend is willing to be a litigation friend or a COPR Pr1.2/COPR r3A representative and whether they are able to keep the care package under review.
•Whether a family member or friend is suitable to be a litigation friend or a COPR Pr1.2/COPR r3A representative, with particular reference to the history of P’s care. It should be not assumed that the person needs to be someone who supports the deprivation of liberty. Indeed, sometimes the most vocal are the best advocates for P.
•If no family member or friend is able to act as P’s litigation friend or COPR Pr1.2/COPR r3A representative, whether or not there is any other person (for instance a statutory advocate such as an IMCA) who would be able to do so.
•Where possible, a statement from one or more of the actual carers should be provided as to P’s wishes and feelings and any deficiencies or possible changes to the care package.
•Any reasons for particular urgency in determining the application.
•Any factors that ought to be brought specifically to the court’s attention (the applicant being under a specific duty to make full and frank disclosure to the court of all facts and matters that might impact upon the court’s decision), being factors:
•needing particular judicial scrutiny; or
•suggesting that the arrangements may not in fact be in P’s best interests or be the least restrictive option; or
•otherwise indicating that the order sought should not be made.
21.68There is a helpful checklist in form COPDOL10, as well as a list of triggers which may suggest that the case may not be suitable for a Re X application.
21.69Once the forms and all the ancillary documentation (including the draft order) have been completed they should be lodged at court with the application fee (see appendix F). As long as the court is satisfied that consultation with P and others has taken place it will dispense with the requirement that the application is served or that P is notified.
17PD 10AA para 41. Where there is agreement from everyone, including the potential COPR Pr1.2/COPR r3A representative where one can be identified (or a litigation friend for P where one has been identified and confirmed their willingness to act and to consent to the order), the requisite order can be made on the papers. As at the time of preparing writing, orders are usually being returned within 4–6 weeks of issue.
21.70If no Rule 3A representative has been identified the current guidance in
Re JM18At para 25. is that the case should be stayed and the Department of Health and Ministry of Justice joined to the proceedings with a view to identifying a potential representative. This is because in
Re JM Charles J found that without such a representative P’s fundamental rights would not be protected. See paras 11.74 onwards for details of the role of the Rule 3A representative; and chapter 6 for details of the legal aid entitlement.
21.71If the judge considers that the case is not suitable for the
Re X process he or she make case management directions
19PD10AA para 47. and may list it for an attended hearing.
21.72Once the order is received it must be served on all those consulted, including P.
20PD10AA para 48. The order will contain details as to the review process, ie the process to extend the authorisation at the end of the authorisation period set down in the order. The review can, where appropriate, be done on the papers. Note that there is, as yet, no specific application for purposes of seeking a review, and that the model order provides that it should otherwise be made on a COP DOL10. The order will further contain a requirement to make an application to the court in the event that the care plan becomes more restrictive.
21.73The draft letter set out in
Re VE 21At para 6. should be used as a template when writing to the Rule 3A representative. From this it will be seen that the role is an ongoing one, and is in some ways an equivalent to the RPR in DOLS cases.