Court of Protection takes government to task over legal representation

People unable to make decisions for themselves because they lack mental capacity must always have access to independent legal representation in hearings about their personal liberty, a High Court judge has held.

In an unprecedented judgment, Mr Justice Charles, vice president of the Court of Protection, placed responsibility on the government to ensure that every vulnerable person whose liberty is considered by the court has appropriate representation when their case is considered.

The judgment was achieved by way of four test cases - JM & others - where no appropriate representative could be found for reasons including resource constraints.

Charles J also ruled that all future similar cases will be adjourned until a workable solution is found. This effectively means that large numbers of such cases will now be left pending indefinitely unless the Legal Aid Agency, local authorities, or central government agree to pay for the unidentified claimants to be represented in the court.

The judgment follows the Supreme Court case of P v Cheshire West & Chester Council; P & Q v Surrey County Council in 2014, which lowered the threshold for cases to go to the Court of Protection. This has increased the number of vulnerable people whose restrictions require authorisation by the court.

Referring to a Supreme Court ruling that concluded that three vulnerable claimants had been 'deprived of their liberty' under mental health powers, Charles J said: 'A consequence of this conclusion of the Supreme Court is that it has, in a time of austerity, imposed major, and perhaps unforeseen difficulties and burdens on those responsible for providing, authorising, and monitoring the placement and care of a wide range of vulnerable people.'

Commenting on the judgment, the Law Society's president, Jonathan Smithers, said: 'When a vulnerable person doesn't have friends or family to represent them during a decision to restrict their liberty, it is vital that person is 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.'

Smithers continued: 'We recognise that the Court of Protection, local authority, and government budgets are stretched. But those who are least able to defend themselves should not be sacrificed on the altar of austerity.

'[The] judgment makes the government responsible for making sure vulnerable people are properly represented when important decisions are made about their care. We look forward to working with the Ministry of Justice to find a solution that is in the best interests of vulnerable people who come to the Court of Protection.'