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.

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