Government ‘invited’ to resolve deprivation of liberty requirements

Topics: Law Society activity,Courts business

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In a long-awaited ruling, the Court of Protection has ‘invited’ the government to find ways to ensure that vulnerable people unable to make decisions for themselves have access to independent representation in deprivation of liberty hearings.

Delivering judgment by way of four test cases in JM & others, Mr Justice Charles (pictured) said the primary responsibility to provide a resource that enabled the Court of Protection to either appoint a professional rule 3A representative or to otherwise meet minimum procedural requirements in those and similar cases ‘falls on the secretary of state, or on the secretary of state together with the applicant authorities’.


Charles invited the Ministry of Justice and Department of Health to identify a suitable person ‘who is ready, willing and able’ to accept immediate appointment as a rule 3A representative or identify an alternative procedure that is ‘actually’ available to the court to meet minimum procedural requirements.

Future similar cases have been adjourned until a ‘practically available procedure’ is found.

Charles acknowledged that his order would ‘create a backlog comprising a very large number of stayed cases’.

‘Plainly this is unfortunate but it will identify the extent of the problem and why the [court] and the applicant authorities have not been able to progress the applications for welfare orders to authorise P’s deprivation of liberty,’ he said.

Charles identified six ‘routes’ the government could take alone or with local authorities to find a ‘necessary solution’.

These include entering into contracts with advocacy services providers to supply a pool of people who can be appointed as rule 3A representatives; setting up a pool of accredited legal representatives; or making legal aid changes.

A government spokesperson told the Gazette: ‘We are carefully considering the judgment and will respond to the findings in due course.’ 

Charles said central government’s stance in the proceedings had been one in which it had ‘failed to face up to and constructively address the availability in practice’ of such rule 3A representatives and ‘sought to avoid them by trying to pass them on to local government’.

Budgetary pressures in central and local government had led to a ‘resources-led catch-22’ for the Court of Protection, and for vulnerable people and their families, ‘because neither central nor local government are offering to create or to try to create a practically available resource to enable the [court] to meet the minimum procedural requirements by appointing professional rule 3A representatives’.

Jonathan Smithers, president of the Law Society, which intervened in the case, said it was ‘vital’ that vulnerable people who did not have friends or family to represent them during a decision to restrict their liberty were 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.’

The Society recognised that the court, local authorities and government budgets were stretched. ‘But those who are least able to defend themselves should not be sacrificed on the altar of austerity,’ Smithers said.

He added that the Society ‘look forward’ to working with the ministry to find a solution.

Readers' comments (6)

  • Terrific, but the order should have included severe sanctions, or perhaps arrangements in default ( I know that's not terribly practical, but it's time the MOJ got a taste of their own medicine!).

    Wouldn't it be great if senior judiciary in crime, family & civil were brave enough to do all join in unison and demand the same? That of course will never happen - or there's only nicely skewed language from the bench talking about things not being quite in order.

    It's nice to see a senior figure speaking out so bravely - very very well done Mr Justice Charles. Let;s hope others follow suit for crime, civil and family.

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  • From one court to another, my grandsons name changed on application, the case was a split case (family), stands to date in the High Court Appeal London split case joined in false name of child, no further appeal allowed
    The case name was then changed back to childs birth certified name, bit of court hopping, Child illegally adopted, minimum, procedural requirements?????????

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  • "Vulnerable people who did not have friends or family to represent them" are only a small minority of " those who are least able to defend themselves"; the majority are children.
    As I have said before, I was incredulous when, long ago, I discovered that our judge-made law had left children in the Victorian era, chattels of their parents, with no independent right of access to justice. Children in dispute with their parents were left dependent on those parents to provide independent representation for their child to pursue a case against them.
    Children are humans and should enjoy the same ECHR protections as adults and to have no less ability to pursue through the Courts any denial of them as is available to the most egregious of convicted criminals.

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  • Where family matters are concerned (but not to say that this does not apply to other court matters I hasten to here add) more and more it is appearing that for the families involved there is no such thing as JUSTICE

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  • I agree Anonymous. But the point is, have you told your MP this? People spend a lot of time blogging and moaning on websites to no avail. Get your MP's contact details and tell him/her what you expect them to do.

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  • @Anonymous 04.38
    Waste of time
    I knew my MP personally, visited my home, helped me prepare tea, drank with my group of friends in our Local, you may remember her Marjory Molem or Mo to friends

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