Updates to Going to Court

Update to para 5.12, page 132: Introduction to the Official Solicitor
para 5.26, page 147: Litigation Friend
para 5.58, page 170: The High Court’s inherent jurisdiction in relation to vulnerable adults
Appendix 5.7 

The Official Solicitor has issued a new and amplified Practice Direction – Appointment In Family Proceedings And Proceedings Under The Inherent Jurisdiction In Relation To Adults, January 2017
This replaces the Practice Direction issued in March 2013, set out at Appendix 5.7.

The new Practice Direction provides a new section on vulnerable adults, good news on rapid allocation times and updated contact details for the Official Solicitor and is set out in the updated Appendix 5.7.

Update to para 5.22, page 138: Sources of Procedural Rules and Guidance
Court of Protection (Amendment) Rules 2017

The Court of Protection (Amendment) Rules 2017[1] (in force on 6 April 2017) allow the Court of Protection to make civil restraint orders, preventing a party who has made an application which is totally without merit from bringing further applications. See also Practice Direction 23C.

Provision is made for applications under MCA 2005 schedule 3 for the international protection of adults: see Practice Direction 24A.

The transparency pilot direction, which hitherto did not apply to cases of serious medical treatment, generally applies to these cases (and the requirement for notifying Copy Direct has been dropped). Paragraph 16 of PD9E (providing that the court will usually make an order that the hearing is to be in public with reporting restrictions) will not apply if the transparency pilot direction applies.

It is understood that a new model order will be issued shortly; a link to this and to the judiciary website will be provided when available.

Update to para 5.30, page 152: Deprivation of Liberty
para 5.31, page 153: How are proceedings begun?

The substantive judgment in Briggs (please see our previous update) has received wide publicity. Shortly before the final hearing, Charles J considered as a preliminary issue whether Mr Briggs’ wife was properly able to bring proceedings under s21A MCA 2005 seeking a declaration that it was in Mr Briggs’ best interest for artificial feeding and hydration to be withdrawn. S21A MCA is the provision under which applications are brought to challenge a standard authorisation, and is more typically used – so far – where P has been placed in a care home and objects to the restrictions on his/her liberty arising out of implementation of the care plan.

Mrs Briggs was open about the purpose of the application, which was to secure non-means tested legal aid (available for applications brought under s21A MCA 2005 but not for other MCA applications). The case was argued on the basis that Mr Briggs was being deprived of his liberty and therefore properly subject to a standard authorisation, but significantly, all parties reserved the right to argue otherwise[2].

Charles J held that the application was properly brought: on a s21A application, the Court of Protection had wide ranging powers to make declarations and orders under ss15 and 16 MCA 2005[3]. In determining whether the best interests condition for a standard authorisation is met, the Court had to consider both ‘the impact of possible and available alternatives’ and ‘as far as reasonably ascertainable, P’s past and present wishes and feelings, beliefs and values and factors that P would be likely to consider if he were able to do so’[4].

Charles J observed that many s21A applications turn on the best interest assessment and lead to changes in the care package to make it less restrictive, rather than to P being no longer deprived of his/her liberty. He also observed that there was no problem in complying with Practice Direction 9E on an application under s21A. The CCG was commended for discontinuing the s16 proceedings which it had brought, in order to allow the case to proceed under s21A and allow Mrs Briggs access to legal representation.

The judgment, if maintained on appeal, is likely to lead to many more applications being brought under s21A MCA rather than s16, and where applications have been brought under s16, to applications for a direction deeming the proceedings to have been brought under s21A, in order for one party to secure non means tested legal aid.

Given the overall benefit of all parties being adequately represented, the authors suggest that whenever a standard authorisation is in place, consideration should be given to bringing proceedings by this route if it will enable a family member to be properly represented[5]. It is not suggested, however, that this should have any impact on the usual rule in cases of serious medical treatment that the applicant Trust or CCG should pay half the costs of the Official Solicitor which he incurs in representing P.



[1] http://bit.ly/2lrvpuW

[2] And may well do so, especially after the Court of Appeal decision in R (ota Ferreira) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31 (please see our update)

[3] Following Re UF [2013] EWHC 4289 at para [11] and CC v KK [2012] EWHC 2136 (COP),

[4] Paragraph 52

[5] And see also MR v SR & Anor [2016] EWCOP 54 (please see our update)