Protected Party’s Involvement In Urgent Deprivation Of Liberty Proceedings

A protected party is an individual who lacks the capacity (understanding) to make decisions about a certain issue, or various issues. Quite often, people with severe health conditions can lack the capacity to understand the nature of their health problems, the treatment or care they are being offered and why they need it, or the safety and suitability of their living environment. This presents local health authorities and local councils with a dilemma, as they have a duty of care towards vulnerable adults and children. It can sometimes be necessary to deprive a protected party of his/her liberty if they require care or treatment and lack the capacity to consent or refuse.

Usually, a protected party is notified of any Court action concerning his/her liberty and will have the opportunity to be represented and put their views before the Court by whatever means are appropriate. At times, however, it can be a matter of extreme urgency that a protected party is deprived of his/her liberty for safety reasons and such a scenario occurred in the recent case of EM, Re [2022] EWCOP 31.

EM, Re [2022] EWCOP 31 (29 July 2022)

Case summary

This case concerned a gentleman who was 74 years old and had had an unfortunate diagnosis of malignant melanoma and brain metastases. He required care and he was living in very unsafe accommodation, but he had rejected help and the health professionals who treated him in the hospital did not believe he understood the nature of his condition or his care needs.

Given the urgent risk of harm to the Protected Party, the local health authority applied to the Court of Protection on an emergency basis, and an interim order was made declaring that:

Whilst the interim order was made in the name of the Protected Party’s protection, the severity of it meant that the Court re-listed the case for a return date just six days later. This time, the local health authority sought an order that the Protected Party would be moved to a nursing home. The Judge, Mr Justice Mostyn, expressed some dissatisfaction that the Protected Party’s participation in the proceedings (and the decision-making process – a key principle of the Act) was limited. The only evidence the Court had of his wishes and feelings was in the form of records from the hospital, and the Judge said:

The Court of Protection Rules 2017 provides that a protected party should have the opportunity to be legally represented by an accredited legal representative and that they should have the opportunity to address (directly or indirectly) the Judge determining the application and the Judge set this out in his judgment. Mr Justice Mostyn drew a clear line in the sand in his interpretation of the rules, declaring that a protected party must always be joint as a party to proceedings, and a litigation friend or representative must be appointed for him/her. The only exception, the Judge said, was in circumstances where an interim order was “very urgently needed” and there was “just not enough time” to secure a protected party’s representation before the hearing.

This case concerned a Protected Party believed to be in urgent need of care, and the haste with which the application was brought and heard at first instance made it impractical to appoint a litigation friend or legal representative. However, even though the return date was only six months later, the Judge made it clear that save for matters of extreme urgency, a protected party should always be represented and should have the opportunity to put his/her views before the Judge.