IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF LB
AND IN THE MATTER OF SHC
Strand, London, WC2A 2LL
B e f o r e :
| NHS DORSET CLINICAL COMMISSIONING GROUP
|- and -
|LB (by her litigation friend, the Official Solicitor (1)
SHC (by his litigation friend, the Official Solicitor (2)
Alex Ruck Keene (instructed by Irwin Mitchell LLP) for the Respondents
Crown Copyright ©
MR JUSTICE BAKER :
i) Whether, for the purposes of Article 5 of ECHR and s64(5) of the Mental Capacity Act 2005, P was deprived of his/her liberty if s/he is not free to leave and is subject to continuous supervision and control but:
a) the restrictions to which he/she is subject are imposed in his/her own home (whether by family members or by paid carers) and;
b) the restrictions are necessary and proportionate for the purpose of providing P with care;
ii) in any event, whether responsibility for any deprivation of liberty in P's own home is to be imputed to the applicant solely by virtue of the fact that it provides NHS continuing care funding for P's care.
In each case the applicant sought a declaration that the respondent was not being deprived of their liberty. The applications were supported by detailed grounds drafted by leading counsel.
(1) the applicant had reconsidered its position in the light of the Official Solicitor's analysis;
(2) difficulties and delays in SHC's case meant that only one of the original four test cases - LB - was now able to proceed to a hearing on the preliminary issues, and as a result the practical application of any decision to future cases may be very limited in scope;
(3) the recent publication by the Law Commission of its report on Mental Capacity and Deprivation of Liberty (Law Comm 372), which includes recommendations for reforms designed to obviate the need for an application to the Court of Protection in the vast majority of cases of alleged deprivation of liberty, whilst not removing entirely the need for the Court to consider the issue raised in the test cases, reduced the justification for those cases and also, it was conceded, reduced the strength of the applicant's argument that the circumstances of the four individuals did not amount to a deprivation of liberty.
"Where the proceedings concern P's personal welfare the general rule is that there will be no order as to the costs of the proceedings or that part of the proceedings that concerns P's personal welfare."
Rule 159, headed "Departing from the general rule", provides (so far as relevant to this application):
"(1) The court may depart from rules 156 to 158 if the circumstances so justify, and in deciding whether departure is justified the court will have regard to all the circumstances, including
(a) the conduct of the parties;
(b) whether a party has acceded on part of his case, even if he has not been wholly successful; and
(c) the role of any public body involved in the proceedings.
(2) The conduct of the parties includes
(a) conduct before, as well as during, the proceedings;
(b) whether it was reasonable for a party to raise, pursue or contest a particular issue;
(c) the manner in which a party has made or responded to an application or a particular issue;
(d) whether a party who has succeeded in his application or response to an application, in whole or in part, exaggerated any matter contained in his application or response; and
(e) any failure by a party to comply with a rule, practice direction or court order."
"Of course it is right that the Court should follow the general rule where appropriate. Parties should be free to bring personal welfare issues to the Court of Protection without fear of a costs sanction. Local authorities and others who carry out their work professionally have no reason to fear that a costs order will be made. The submission that local authorities will be discouraged from making applications to the Court of Protection if a costs order is made in this case is a thoroughly bad argument. The opposite is, in fact, the truth. It is only local authorities who break the law, or who are guilty of misconduct that falls within the meaning of rule 159, that have reason to fear a costs order. Local authorities who do their job properly and abide by the law have nothing to fear. In particular, the Court of Protection recognises that professional work in this very difficult field often involves very difficult judgments and decisions. The Court is not going to impose a costs burden on a local authority simply because hindsight demonstrates that it got those judgments wrong."
"These decisions do not purport to give guidance over and above the words of the Rules themselves – had such guidance been needed the Court of Appeal would no doubt have given it in Manchester City Council v G. Where there is a general rule from which one can depart where the circumstances justify, it adds nothing definitional to describe a case as exceptional or atypical. Instead, the decisions represent useful examples of the manner in which the court has exercised its powers."
(1) I do not accept the suggestion that this was not a typical welfare case. The application concerned a series of welfare cases in which an important preliminary issue arose on a point of law.
(2) As is widely recognised, the law concerning deprivation of liberty under the Mental Capacity Act is in a state of some uncertainty. That is why it has been the subject of a review by the Law Commission whose final report contains recommendations for substantial reform. The government has now accepted the report and the majority of its recommendations, and acknowledged that the current Deprivation of Liberty Safeguards should be replaced "as a matter of pressing urgency" (see government response 14 March 2018).
(3) It was in my judgment understandable that the applicant sought guidance on the issue of the impact of the "acid test" on cases involving incapacitated adults living at home, given the large number of individuals in those circumstances for whom it is responsible. In the words of rule 159(2)(b), it was reasonable for the applicant to raise and pursue this issue.
(4) Given the constraints under which all public bodies operate, the applicant was entirely justified in keeping under review the question of whether to pursue the case. Indeed, it would have been remiss if it had not done so. The fact that the applicant decided to abort the proceedings was a reasonable decision. To use the words in rule 159(2)(b) again, it was reasonable for the applicant to decide not to contest the issue in the light of developments in the litigation as described above.
(5) Although it is arguable that the difficulties in the individual cases could have been anticipated, I do not think that the applicant's failure to do so at an earlier stage could be described as litigation conduct of the sort to justify departing from the general rule.
(6) Although my comments in G v E (Costs) above were made in a different context, they do have some relevance here. Professionals working in this field often face difficult judgements and decisions. The applicant made the decision to ask the court to consider the preliminary issue which, as Mr Ruck Keene fairly conceded, involved propositions of general and considerable importance. Subsequently, however, in the light of developments within the cases, the applicant decided not to pursue the issue. In all the circumstances, I do not consider that its decision-making and overall conduct justifies a departure from the general rule as to costs.