Court of Protection update.
A senior judge has challenged the government to provide legal representation for vulnerable people as a backlog of safeguarding cases that cannot be tried builds up in the court of protection.
The ruling by Mr Justice Charles will, in effect, halt thousands of sensitive applications a year involving those with dementia, Alzheimer’s or learning disabilities who require treatment involving some loss of liberty.
The judgment is the latest confrontation in the gruelling war between the legal profession and ministers over how much money should be spent on the justice system at a time of austerity.
In his judgment, Charles, who is a high court judge and vice-president of the court of protection, has adjourned four test cases until someone – the Legal Aid Agency, local authorities or central government – agrees to pay for the unidentified claimants to be represented.
The face-off is partially a consequence of a 2014 DECISION BY THE SUPREME COURT which concluded that a severely incapacitated man and two sisters with severe learning disabilities had been “deprived of their liberty” under mental health powers. In extending human rights protections, it said they were entitled to take part in any deprivation of liberty proceedings.
Charles said: “A consequence of this conclusion of the supreme court is that it has, in a time of austerity, imposed major and perhaps unforeseen difficulties and burdens on those responsible for providing, authorising and monitoring the placement and care of a wide range of vulnerable people.”
Thousands of cases every year would be affected, he said. Either extra resources would have to be provided or the court of protection would halt hearings because they would otherwise breach article five of the European convention of human rights, guaranteeing the right to liberty, and the common law.
Charles acknowledged he could not order the government to pay for legal representation and therefore issued an “invitation” for it to do so.
The judge said: “ … unless the Ministry of Justice and the Department of Health (or one of them) are joined parties, they will continue to seek to avoid any responsibility for the provision of resources … that enable the [court] to meet the minimum procedural requirements and this will cause further delays and difficulties.”
The Law Society, which represents solicitors throughout England and Wales, intervened in the case. Its president, Jonathan Smithers, said: “
When a vulnerable person doesn’t have friends or family to represent them during a decision to restrict their liberty, it is vital that person is able to participate in the decision-making process.
“If this is not possible then they must have a legal representative to protect their rights as well as their health and general welfare. Those who are least able to defend themselves should not be sacrificed on the altar of austerity.”
Sophy Miles, a barrister at Doughty Street chambers who formerly chaired the Law Society’s committee on mental health and disability, said: “These cases involve people who are being cared for in circumstances where they are under constant supervision and control. They cannot exercise autonomy and, because of that, they can’t give consent. They need a certain level of legal protection.”
Our MENTAL HEALTH and MENTAL CAPACITY DEPARTMENT members are specialists in Court of Protection matters. We represent individuals and their families in these complex proceedings. As legal aid contract holders we are able to assess your eligibility for public funding and where relevant apply for a public funding certificate to fund your case. Please contact us for a free consultation.