This case will be of interest to Commissioners and Providers who have made and/or are processing Re X streamlined applications where there is no identifiable Rule 1.2 Representative.
1. Deprivation of Liberty;
2. Re X Streamline Applications;
3. Article 5 ECHR Rights;
4. Rule 1.2 Representative; and
5. Court Visitors.
For applications seeking a DoL authorisation which have been stayed due to no Rule 1.2 Representative being available, the Court of Protection can direct a Court Visitor to produce a report to secure P's interests in the proceedings – subsequently ending any stay that has been put in place.
This case offers a pragmatic solution to resolving the number of stayed Re X Streamlined applications currently before the Court. However, Court Visitor resources are limited and as such, it is unknown whether this solution will be viable in the long-term.
Please note, the judgment made in this case concerned cases making an application for a DoL authorisation which were already:
(a) stayed; and
(b) subject to judicial consideration
As such, it is not yet clear whether the option of appointing a Court Visitor will be an accepted solution for new cases seeking a DoL authorisation where there is no Rule 1.2 Representative.
This case concerned four cases which had been stayed in accordance with Justice Charles' judgment in Re JM .
The issue raised in Re KT, DR, KH and DC ("Re KT") was whether a welfare Order approving a care plan that is:
a) uncontroversial; and
b) would authorise a DoL as a result of its implementation
This will have been made by a procedure that meets the minimum procedural requirements of Article 5 of the ECHR if P's participation in the proceedings was secured via the appointment of a Court Visitor who would produce a s.49 Report under the Mental Capacity Act 2005. Justice Charles held that such a report would satisfy the minimum procedural requirements required by Article 5 of the ECHR.
Whilst noting that the appointment of a family/friend Rule 1.2 Representative is the preferred choice, it was held that in cases where a professional Rule 1.2 Representative is not an available option, then the appointment of a Court Visitor to produce a s.49 Report ought to be adopted to lift stayed cases where it is a practically available option.
This case concerned four cases which had been stayed in accordance with Justice Charles' judgment in Re JM  where it was held that applications seeking a DoL authorisation which are not contentious should be stayed when no family member/friend is available to act as a Rule 1.2 Representative.
Following Justice Charles' judgement in Re JM  the number of applications which have been stayed have rapidly increased. In order to address the number of stayed cases seeking a DoL authorisation following Re JM , the Government Legal Department indicated that funding could be provided to the Court to promote greater use of Court Visitors. It was on this basis that the case of Re KT was brought before the Court to determine whether the use of Court Visitors would be compliant with Article 5 of the ECHR and therefore, lift the stay on the four cases involved.
It was held that a Court Visitor preparing a s.49 Report to assist the Court in stayed cases would be compliant with Article 5 of the ECHR as it would provide the essence of P's procedural rights as the Court Visitor would be required to:
a) elicit P's wishes and feelings;
b) critically examine the proposed care package from the perspective of P's best interests; and
c) determine whether the proposed package of care is the least restrictive available option for P's care.
Although a Court Visitor would not be able to keep the package of care under review, Justice Charles was satisfied that the periodic reviews by the Court with the benefit of a Court Visitor's report would meet the necessary procedural requirements.
Moreover, whilst noting that the appointment of a family/friend Rule 1.2 Representative is the preferred choice, and that -
"the appointment of a professional who could act independently as a Rule 3A (now Rule 1.2) representative and carry out regular reviews of P’s placement and care package on the ground would in most cases be likely to have advantages over the appointment of a visitor because it would provide a better basis of and for review and equivalent expertise and independence to that provided by a visitor."
Justice Charles concluded -
"that the Court of Protection can give directions to a visitor, who is appointed as such to assist the Court of Protection on an application and a review that will enable it to obtain sufficient information to satisfy those minimum requirements and to make welfare orders on the papers without joining P as a party."
It is important to note, if a professional Rule 1.2 Representative is available the Court should still be informed of this option so that the Court can consider whether, in P's particular circumstances, the option of a Court Visitor is the best available option to resolve the matter.
As such, it was agreed that in cases where a family/friend cannot act as a Rule 1.2 Representative and in the absence of an available professional Rule 1.2 Representative, the appointment of a Court Visitor to produce a s.49 Report ought to be adopted to lift stayed cases where it is a practically available option.
This case summary was written by Lisa Mulholland, Paralegal. If you would like to discuss this topic in more detail please contact firstname.lastname@example.org.