X (Court of Protection Practice), Re

The appeals could not be entertained because the Court of Protection proceedings had been used to obtain general answers to hypothetical procedural questions, without determining live issues between the parties or making operative orders.

The court nevertheless stated that, if jurisdiction had existed, a person whose liberty was in issue would presently need to be joined as a party to the relevant proceedings. Article 5 requires effective access to a court, an opportunity to be heard and safeguards against arbitrary detention. The proposed streamlined process depended too heavily on information supplied by the applicant and on P expressing a wish to participate.

Following Cheshire West, the President of the Court of Protection gave judgments on 7 August and 16 October 2014 concerning a proposed streamlined procedure for deprivation of liberty applications under the Mental Capacity Act 2005. The judgments answered general questions about joinder, hearings and litigation friends, but no order was made to give effect to them.

AC, GS and the Law Society appealed. The Court of Appeal first had to decide whether the President had jurisdiction to determine the questions and whether an appeal lay under section 53 of the Act. The central substantive issue, considered conditionally, was whether P must always be joined as a party.

1. Jurisdiction and appeal. The appeals were not entertainable. Under section 53(1) of the Mental Capacity Act 2005, a decision capable of appeal is the court’s ultimate determination of a matter in issue between parties. It does not include general answers to questions of law or practice, detached from the disposal of particular proceedings. The President’s hearings were a consultative exercise intended to inform future rules. The cases of AC and GS did not raise the relevant issues, and no operative order reflected the judgments.
2. Academic appeals. The court’s modern willingness to hear an academic appeal remains exceptional and cautious. It does not permit the court to give advisory opinions merely because an authoritative answer would be useful. The present appeals were not disputes which had become academic after being live; there was no identified live or impending dispute in the proceedings below. The Law Society was in no better position.
3. Conditional substantive conclusion. The Court of Appeal nevertheless expressed the answer it would have given if jurisdiction had existed. The domestic scheme must be understood alongside Article 5 of the Convention. Winterwerp v The Netherlands and M.S. v Croatia (No. 2) establish the need for access to a court, an effective opportunity to be heard and special procedural safeguards for persons unable fully to act for themselves. The starting point for adults with disabilities is the same human-rights starting point as for other adults, as recognised in Cheshire West.
4. Joinder. The proposed streamlined process was insufficiently reliable. It depended on P or another person identifying the need for participation, and on the completeness and neutrality of information commonly supplied by the body seeking authorisation. Under the procedural tools then available, P therefore had to be joined as a party in every relevant deprivation of liberty proceeding, with a litigation friend. The court did not decide that formal joinder was indispensable under every possible Article 5-compliant scheme; a different and reliable safeguards-based procedure might suffice.

1. Court of Protection: The President gave judgments on 7 August and 16 October 2014 addressing a proposed streamlined deprivation of liberty procedure. No order was made reflecting those judgments.
2. Court of Appeal (Civil Division): The court held unanimously that it had no jurisdiction to entertain the appeals. It stated its conditional substantive view on joinder only on the assumption that jurisdiction existed.