X (Court of Protection Practice), Re

The Court of Appeal concluded that it did not have jurisdiction to entertain the appeals against the President of the Court of Protection because the President's hearings and rulings were not decisions in a particular lis capable of appeal under section 53 of the Mental Capacity Act 2005. The President had convened a wide-ranging consultative exercise to devise a "streamlined" procedure for deprivation of liberty cases following Cheshire West; the Court held that that process went beyond the Court of Protection's proper function where no concrete issues in individual cases were identified.

As an obiter substantive conclusion, the court would (had it had jurisdiction) have held that, under the present domestic framework and the requirements of Article 5 ECHR, a person who may be deprived of his liberty ("P") should, in practice, be joined as a party to proceedings authorising deprivation of liberty so that effective procedural safeguards (including a litigation friend and effective representation) are reliably provided.

Background and procedural posture:

• The President of the Court of Protection convened hearings (directions hearing 8 May 2014 and a substantive hearing 5–6 June 2014) to answer 25 questions intended to underpin a standardised or "streamlined" process for Court of Protection authorisations of deprivations of liberty after the Supreme Court decision in Cheshire West ([2014] UKSC 19). Two preliminary judgments were delivered by the President (7 August and 16 October 2014).
• Two individual cases (AC and GS) were among a number of matters listed; both AC and GS had subsequently been joined as parties in their separate first‑instance proceedings and had litigation friends and legal representation. The President made no formal orders in the listed cases reflecting the judgments made in the consultative exercise.

Nature of the application / relief sought:

• Appellants sought to appeal aspects of the President’s procedural rulings. The central contested question decided on the merits was whether P must always be joined as a party to proceedings in which his deprivation of liberty may be authorised; related questions included whether P must always have an oral hearing and whether a litigation friend may conduct litigation without a solicitor (the latter two were left in abeyance).

Issues framed by the court:

1. Did the President have jurisdiction to conduct the consultative hearings and issue the rulings he did in the way he did?
2. Did this court have jurisdiction under section 53 MCA 2005 to entertain appeals against the President’s judgments?
3. Substantively, must P always be joined as a party to Court of Protection proceedings authorising deprivation of liberty, consistent with the MCA 2005, the Court of Protection Rules 2007 and Article 5 ECHR?

Reasoning and conclusions:

• Jurisdiction: the court held that "decision" in section 53 must be read in context as a decision on an issue arising between parties in a particular lis; the President’s exercise was essentially consultative and did not produce orders or determinations affecting the appellants’ cases. The Court of Appeal therefore lacked jurisdiction to hear the appeals and declined to decide them on the merits.
• Procedural propriety: the judges criticised the undisciplined use of the Court’s processes to obtain general legal guidance in the absence of case‑specific issues, noting established principles that courts should not give advisory opinions or decide hypothetical points divorced from real disputes.
• Obiter substantive view: had the court had jurisdiction it would have held that, given the safeguards required by Article 5 and the domestic framework (notably Schedule A1 and section 16 MCA 2005, and the protections provided by litigation friends and representatives), it is presently necessary for P to be a party to proceedings which may authorise deprivation of liberty so that effective and reliable procedural safeguards exist in practice.

Wider context and implications:

• The judgment emphasises the need for properly constituted rules and Practice Directions (the ad hoc rules committee and Practice Direction 10A are discussed) to address the post‑Cheshire West workload, rather than ad hoc consultative judicial exercises. The court gave guidance on procedural safeguards but treated those holdings as obiter because of the jurisdictional conclusion.

Appeal dismissed for lack of jurisdiction. The Court of Appeal held that the President’s hearings were a consultative exercise rather than determinations in particular proceedings and therefore not "decisions" within section 53 MCA 2005 giving rise to an appeal; obiter, the court would have required that P be joined as a party to deprivation of liberty proceedings to ensure Article 5 compliance and effective procedural safeguards.

Appeal to the Court of Appeal (Civil Division) from the Court of Protection (President Sir James Munby) following the President's preliminary judgments of 7 August 2014 and 16 October 2014. Neutral citation [2015] EWCA Civ 599. The President had convened consolidated directions hearings (order dated 8 May 2014) in anticipation of numerous post‑Cheshire West applications; no formal orders reflecting the President's judgments had been made in the listed cases.