Top CoP judge sets out 'streamlined' approach to cases post-Cheshire West
The President of the Court of Protection has handed down an eagerly-awaited preliminary ruling in which he has sought to set out a standardised approach to deprivation of liberty cases in the aftermath of the Supreme Court’s Cheshire West judgment in March.
Sir James Munby said it was not yet clear how large the increase in the Court of Protection’s workload would turn out to be.
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However, the judge said it was clear that there was going to “a very significant increase” in cases relating to deprivations of liberty. This could be even higher if “otherwise purely private care arrangements – for example, the care at home by the family of an elderly relative or spouse suffering from dementia – come within the ambit of Article 5 because of some involvement by the State, whether a local authority or the court.”
He emphasised that he was not concerned with such complex issues at this stage, but was merely mentioning them because there could be a large number of such cases adding even further to the CoP’s workload.
The President said his immediate objective was “to devise, if this is feasible, a standardised, and so far as possible ‘streamlined’, process, compatible with all the requirements of Article 5, which will enable the Court of Protection to deal with all DoL cases in a timely but just and fair way.
“The process needs, if this is feasible, to distinguish between those DoL cases that can properly be dealt with on the papers, and without an oral hearing, and those that require an oral hearing.
“In my judgment, that objective is feasible and can be achieved.”
In the preliminary ruling, which can be viewed here, Sir James set out his answers to 25 questions that were considered at a hearing on 5 June and had been identified as requiring answering if the immediate objective of standardisation was to be carried forward.
“It [the judgment] concentrates on the issues directly relevant to what I will call the ‘streamlined’ process,” Sir James noted. “It sets out no more than the broad framework of what, in my judgment, is required to ensure that the ‘streamlined’ process is Article 5 compliant. Additional, detailed, work needs to be carried out as soon as possible by the Court of Protection in conjunction, where appropriate, with the Committee.”
(The committee is an ad hoc, non-statutory committee recently set up to review the Court of Protection Rules 2007 and associated practice directions and forms)
The CoP President said a further judgment would follow in due course, elaborating on his reasons for deciding as he had and dealing with certain questions not dealt with in the preliminary judgment.
In its ruling in March this year, the Supreme Court found that all three individuals at the centre of the landmark cases of Cheshire West and P & Q were deprived of their liberty and so should benefit from the relevant protections of the Mental Capacity Act 2005.
Last week the Local Government Association and the Association of Directors of Adult Social Services called on ministers to fully fund the impact of the Supreme Court’s ruling.
ADASS research – conducted at the request of the courts following the Supreme Court judgment – suggested that assessments under the MCA Deprivation of Liberty Safeguards (DoLS) for individuals would increase from a projected figure of 13,719 in 2013/14 to projected figures of more than 138,000 in 2014/15 and nearly 176,000 in 2015/16 in hospitals and residential settings.
The projected figure in relation to DoLS requests for settings outside of hospitals and care is meanwhile expected to rise from 212 to over 28,500 in 2014/15 and over 31,000 in 2015/16.
The LGA and ADASS claimed that the extra work created by the judgment in requiring the assessment of thousands more people under the safeguards would cost councils at least £88m. There is likely to be an increase in waiting times for assessments, they added.
| Deprivations of Liberty: The key to the 'Gilded Cage' | £25.00 |  |
This course looks at whether the Supreme Court's decision in P&Q v Cheshire West and Chester Council means that there is now a single 'acid test' for Deprivations of Liberty and assesses its ingoing implications. |