This document is an update to our guide first produced in April 2014.

Update to Deprivation of Liberty Guide

The Court of Protection has been overwhelmed by welfare applications involving a deprivation of liberty as a result of Cheshire West. In Re X and others (Deprivation of Liberty) (2014) EWCOP 25 and Re X (2) (Deprivation of Liberty) (2014) EWCOP 37, The President of the Court of Protection gave guidance as to how this stream could be managed whilst preserving the Art 5 and 6 rights of the patient. It must be noted that the arrangements are a pilot and that further guidance may well emerge. The position as at 7 February 2015 can be summarised as follows;

  1. A distinction can be made between cases which can be made on the papers and those requiring an oral hearing, the decision as to any deprivation of liberty being one for a judge. In particular if there is any contest over any issue by the person who is the subject of the application (“P”) or anyone else.
  1. The procedure is set out in Part 2 of Practice Direction 10AA, which supplements Part 10A of the Court of Protection Rules 2007. Form COPDOL 10 is the mandatory form to be used for the application. The form and the practice direction provide for certain procedural requirements to be complied with by way of the provision of evidence and the need to consult with P and other persons.  There is also a model form of order if the paper procedure is agreed by the court. The PD, forms and draft order are available on the court website. The PD clarifies the requirement for evidence of unsoundness of mind from a registered medical practitioner as well as of incapacity.
  1. Whilst each P must be the subject of a separate application dealing with specific issues, a generic statement may be lodged for features common to a number of applications.
  1. If the model order is followed then it can be reconsidered at any time on application by any person properly interested in P’s welfare. This does not attract non means tested legal aid cf s 21 applications.
  1. It is not necessary that the patient be a party. If not a party there is no need for a Litigation Friend. A patient can apply to be joined as a party. The current rules requiring a Litigation Friend for a party may be amended to make it unnecessary. The aim is to ensure that the patient’s Art 5 right to have ‘access’ to the court and the opportunity to ‘be heard’ (see Airey v Ireland (1979) EHRR 305 ) is protected bearing in mind the exposure of a Litigation Friend to an order for cost and the legal aid difficulties mentioned elsewhere. The ad hoc committee examining the 2007 rules is to consider how this can be achieved.
  1. Unlike the s21 DOLS procedure, there is no provision in s16 welfare applications for an independent Best Interests Assessor nor an Independent Mental Capacity Advocate. As there is no non-means-tested legal aid even where a deprivation of liberty is authorised, there is no guarantee of legal advice. In consequence, the paper procedure will rely to an exceptional degree on the integrity and robustness of the material from the applicant who must comply with the duty to identify all issues including any weaknesses in the case. It is also the applicant from the local authority who will complete the information as to the consultation with P and their wishes and feelings.  These may lead the court to move the application from the paper procedure to an oral hearing. The rules committee is expected to explore how the system can be safeguarded given the inherent risk that a public body may be influenced by the financial consequences of triggering an expensive hearing.
  1. The model order makes provision for the review process as there will need to be judicial review of the deprivation of liberty within 12 months of the authorisation. This review period can be shorter if considered appropriate by the court. If there are any urgent changes to the care plan which makes this more restrictive, an urgent application must be made to the court. If changes are required to make the care plan more restrictive, but not as a matter of urgent necessity an application must be made to the court before the changes are implemented. Otherwise, the applicant local authority must submit form COPDOL10 duly completed not less than one month before the end of the review period. The review will be conducted on the papers unless it is considered that an oral hearing is required.

There has been intense and extensive debate following Cheshire West but none so bold as the decision of Mostyn J. in Rochdale MBC v KW (2014) EWCOP 45. Granting leave to appeal to the Court of Appeal in the hope that the question of deprivation of liberty might swiftly be referred to the Supreme Court for reconsideration he said, ‘I am of the view that for the plenitude of cases such as this, where a person, often elderly, who is both physically and mentally disabled to a severe extent, is being looked after in her own home, and where the arrangements happen to be made, and paid for, by a local authority, rather than by the person’s own family and paid for from her own funds, or from funds provided by members of her family, Article 5 is simply not engaged.’ The matter was swiftly disposed of by the Court of Appeal who allowed the appeal by consent.

 s.21A Applications

In a very recent judgment in the case of AJ (Deprivation Of Liberty Safeguards)

[2015] EWCOP 5 (10 February 2015), Mr Justice Baker considered the situation of an elderly lady who had been placed in a residential care home initially for a period of respite, when family members could no longer care for her, with a view to this becoming a permanent placement. In finding that the local authority had not followed the correct process for this, the judge set out that there were lessons to learn from this litigation, which was brought as a s.21A application, later to include a claim for a declaration that AJ had been unlawfully deprived of her liberty. Mr Justice Baker’s these lessons can be summarised as follows:

  1. Usually, plans should be made so that a standard authorisation can be put in place before a deprivation of liberty begins and an urgent authorisation should only be relied on in exceptional cases.
  2. Professionals should be alert to situations where a person is admitted to a care home for respite care when the underlying plan is for a permanent placement, in order that proper consideration is given to the need to authorise any resulting deprivation of liberty.
  3. In selecting a RPR (relevant persons representative) the assessor must be satisfied that the person will maintain contact, represent and support P, as well as, on the facts, meeting the criteria set out in regulation 3 of the Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative) Regulations 2008.
  4. The local authority is also under an obligation to be satisfied of the above when appointing the RPR.
  5. Close relatives and friends who have been involved in arranging a placement in residential care may find it difficult to fulfil the role of RPR, which includes making a challenge to the authorisation, and therefore the assessors and local authority need to give careful consideration to the potential for a conflict of interest.
  6. An appointed IMCA must act quickly to bring any challenge to an authorisation before the court so as to safeguard P’s rights.
  7. The local authority remain under an obligation to ensure that the RPR and IMCA are acting in accordance with these obligations.
  8. If the RPR and IMCA fail to bring any challenge to an authorisation before the court, the local authority should consider doing so itself.

These steps are all considered to be necessary in order to safeguard and preserve P’s Article 5 rights to have the lawfulness of his detention decided speedily by a court. The making of a s.21A application to the court is not a best interests decision, but instead there is an obligation to do so on the local authority, the RPR and the IMCA where P expresses opposition to the circumstances resulting in a deprivation of liberty.

John O’Donnell and Philippa Curran

Print Friendly, PDF & Email