In an unusual judgment, the Court of Appeal has ruled that streamlined procedures introduced by the Court of Protection must not prevent people who lack capacity from participating in or having legal representation at hearings affecting their liberty.
The judgment in Re X (Court of Protection Practice) by Lord Justice Moore-Bick (pictured), vice-president of the civil division, with Lady Justice Black and Lady Justice Gloster, follows a landmark Supreme Court case P v Cheshire West & Chester Council; P & Q v Surrey County Council which last year lowered the threshold for cases to go to the Court of Protection.
This increased the number of decisions on restrictions such as restraint or enforced medical treatment - so-called deprivation of liberty cases under the Mental Capacity Act - requiring authorisation by the Court of Protection.
In response, the Court of Protection introduced streamlined procedures, which were subject to judgments in Re X delivered by the President of the Court in August and October last year. The Law Society appealed the ruling on the grounds that a person whose liberty is at risk must always be a party to related court proceedings.
Today's appeal court ruling declines jurisdiction in the case – but, unusually, sets out what its views would have been if it had jurisdiction.
Law Society president Andrew Caplen welcomed the ruling. 'When someone is living with dementia or a learning disability, it is essential that the care and treatment which they receive is in their best interests. Sometimes that means providing treatment to which they are unable to consent. More and more families with elderly relatives are having to face that reality.
'The Law Society lodged an appeal because the fundamental rights of patients to participate in legal proceedings about their liberty were at risk. We are grateful for being given permission to appeal.
'We recognise the resourcing pressures on the Court of Protection, but anyone facing court proceedings which concern their liberty must be able to participate effectively in or be legally represented at those proceedings. We hope to work closely with the Court of Protection to resolve the issues brought to light by the judgment.'