Criminal Justice and Courts Bill

Lord Hardie Excerpts

Wednesday 22nd October 2014 Lords Chamber

[Lord Hardie (CB)]

My Lords, I apologise for speaking at this late hour and detaining your Lordships but Amendment 138 is important for the application of the safeguards in the Mental Capacity Act against depriving people of their liberty without justification and for the need to provide proper judicial supervision of such actions. I declare an interest in that I was chairman of the Select Committee on the post-legislative scrutiny of the Act.

The consequence of the need to ensure that these safeguards are in place is that there should be adequate resources to decide cases at first instance and on appeal within the Court of Protection. These cases should be decided by the appropriate level of judges. I am grateful to the Minister for explaining the reasoning behind this amendment. I understand that the decision in the Cheshire West case, in which the Supreme Court concluded that each of the three appellants who had mental or physical disabilities or had suffered deprivation of their liberty within the meaning of Section 64(5) of the Mental Capacity Act 2005, had the effect of increasing the workload of the system.

I should advise the House that I have been told that the number of cases involving an alleged deprivation of liberty referred to local authorities for assessment, which is the first stage, has increased dramatically. There has been a ninefold increase in monthly referrals. The total number since April this year is almost 33,000, compared with 8,455 for the whole of 2012-13. This will not come as a surprise to the members of the Select Committee on post-legislative scrutiny of the Act, which I had the honour to chair and of which the Minister was a distinguished member before his justifiable appointment to ministerial office.

Our report predated the decision in Cheshire West by, I think, about a week. We heard evidence over a number of months suggesting that the then available figures did not accurately reflect the number of people who were actually subject to deprivation of liberty. Perhaps I may quote from paragraph 270 of the report, where we record our conclusion on that evidence:

“We are concerned that there is a very real risk that the Deprivation of Liberty Safeguards are frequently not used when they should be, leaving individuals without the safeguards Parliament intended, and leaving care providers vulnerable to legal challenge”.

Against that background, it is not surprising that the Government are anxious to take a more flexible approach to appeals, but it is equally important that these appeals are held by judges of higher authority than first-instance judges. The existing provisions in the Act have a hierarchy where the first-instance judges are set out as people who are drafted in—district court judges or circuit judges—and there is a hierarchy of appeals. From those who are drafted in, there is a right of appeal to the district court judge or the circuit judge. From the district court judge there is a right of appeal to the circuit judge, and from any of the three of them there is an appeal to the senior judges who are nominated to serve in the Court of Appeal.

In Scotland, England and Wales appeals are generally heard by an appeal court that is comprised of more than one judge, but there are exceptions where appeals may be heard by a single judge. In Scotland, for example, one might appeal against a decision of a sheriff to the sheriff principal. We have seen that in England and Wales there is the possibility of an appeal to a single judge in the Court of Protection. But where it is an appeal to a single judge, it is always an appeal to a single judge of a higher status and legal authority. That is preserved in the original provision, but in the amendment being proposed no reference is made to it. I appreciate that the likelihood is that the rules council would not permit an appeal to someone of equal or lower status, but I am concerned that it should be put on the record that that would not happen, because otherwise there might be a suggestion to the more vulnerable members of society that their appeals were not being treated with equal concern and consideration as those of the more able.