Court of Protection Newsletter #0629.01.18
Welcome to January's issue of Spire Barristers’ Court of Protection Newsletter covering the previous month's news from around the web, practice updates and case reviews in Court of Protection and Public Law matters: edited by Jacqueline Thomas, Ella Anderson and Laura Twist. Contributions from pupils Sharon Tappin and Ashley Lord
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Case Law Update
T (A Child: Care Order: Beyond Parental Control: Deprivation of Liberty: Authority to Administer Medication)  EWFC B1
T is a thirteen year old boy, with autism spectrum disorder (ASD) and severe learning disability, living in a specialist residential unit in circumstances which amount to a deprivation of his liberty. The court authorised the deprivation of liberty under the High Court’s inherent jurisdiction. A further inherent jurisdiction application was made seeking a declaration that it was in T’s interests to receive a MMR vaccination and for prescribed anti-psychotic medication and sleeping medication to be administered against the wishes of T’s mother. The court considered whether the administration of prescribed medication was a matter for the local authority in exercising their parental responsibility under a care order, or a matter for the court and whether a declaration was required. The court found that administering medication which has serious recognized side effects and for T, who would have more difficulty expressing if he were suffering from side effects, were such serious interferences with the mother’s Article 8 rights that the decision must be made by the court.
KT & Ors, Re  EWCOP 1 (15 January 2018)
The court considered 4 test cases which had previously been stayed in accordance with the decision in Re JM  EWCOP 15, 3 cases involved Suffolk County Council whilst one involved Wolverhampton City Council. In JM the court had concluded that applications for DoL authorisation should be stayed when there is no friend or relative available to appoint as Rule 3A representative (now COPR Pr1.2, since December 2017) in order that the Ministry of Justice and Department of Health identify professionals to undertake the role. Since the Re JM judgment the number of stayed cases had grown to over 300, where public bodies had been unable to identify a professional who could be appointed as the Rule 3A representative. The court’s position in Re JM was that the court was seeking clarification whether local authorities were able to meet the minimum procedural requirements of appointing Rule 3A representatives and the resource implications of this. The secretary of State had responded that there was no specific statutory obligation that requires a local authority to arrange or fund rule 3A representatives, and that local authority responsibilities to comply with Article 5 are the same as other public authorities. The secretary of state also clarified that it was not asserting that local authorities were responsible for funding the appointment of ligation friends.
The issue for the court was whether a welfare order approving an uncontroversial care plan authorising a DoL where P’s participation is through the appointment of a general visitor reporting under s.49 MCA, which supports the making of the welfare order, would satisfy the procedural requirements under Article 5, and of fairness. And if that was found to be an acceptable approach the court identified a number of further issues to be addressed about that process.
The court found that Secretary of State had adopted an avoidant approach which failed to address many of the resource issues. The court found that the Secretary of State had not adequately addressed the issues, and that the Court of Protection should look to the Secretary of State to provide the relevant resources to act lawfully, and that the appointment of a professional Rule 3A representative remains an option which is not practically available in a significant number of cases. The Court also found that in most cases where a professional Rule 3A representative is not available the court will appoint a visitor as long as that remains a practically available option.
The court then proposed that the Secretary of State, the Public Guardian and the COP (through the Senior Judge) try and agree a process to lift the stays in around 330 cases, proposing that visitors are appointed to report to the court.
The court concluded that in cases with no practically available process available the Crown should be joined to proceedings and the applications and reviews should be stayed.
The Court set out a draft process for resolving stayed applications as a schedule to the judgment.
Case Law Directory
Spire Barristers Public Law team have compiled a case law directory spreadsheet of notable Court of Protection cases since 2009. The database also includes some key decisions from the Family and Administrative Courts that are of relevance to practice in the Court of Protection. Each case has a short list of associated key words and a link to the judgment to enable easy searching when looking for relevant case law. We hope this will be a useful resource for other Court of Protection practitioners.
The Worboys Decision: The start of a JR headache for the Parole Board?
Arguably one of the most high-profile parole decisions in the last 12 months has been the decision to release John Worboys from prison on “strict licence” conditions.
The decision has sparked widespread outrage amongst the victims, public and indeed the government.
Mr Worboys was convicted on 12 counts of rape and/or other sexual offences in 2009. At the time he was sentenced to serve a minimum of 8 years in custody – having served just under 10 he is now to be released.
In what would have been an unprecedented step, the new Justice Secretary, David Gauke suggested that he would be looking at the prospect of issuing judicial review proceedings against the Parole Board in relation to its decision.
As is relatively well-known, judicial review can only be brought in very strict circumstances, primarily where a decision is considered illegal or where a decision is considered perverse or otherwise so unreasonable that no reasonable body would have acted in the same way.
It appears that despite widespread support for a government led judicial review in this case, the Justice Secretary has accepted legal advice and abandoned his plans to mount such challenge. That said, the victims and London Mayor, Sadiq Kahn have indicated that they will still seek to challenge the decision with proceedings to be issued in the coming days.
The public attention that this case has drawn may well lead to a review of the Parole Board decision making process and the Justice Secretary has already indicated that he will be reviewing the process. If the process and decisions remain as private as they currently are then legal challenge by way of judicial review may not be limited to this case, but may become a far more regular feature in the Administrative Court.
Whilst offering little comfort for the victims of Worboys, moving forwards the hope must be that what is currently a particularly secretive process will become far more transparent and understood far more widely than it currently is.
In the meantime, with proceedings afoot, the JR process is likely to be under the public microscope once more.