Claimants apply to Court of Appeal over approach to deprivation of liberty cases

An application has been made to the Court of Appeal for leave to appeal two key parts of a ruling by the President of the Court of Protection that was intended to streamline the handling of deprivation of liberty cases after the Cheshire West judgment.

The CoP President, Sir James Munby, issued a preliminary ruling in August setting out the approach to be taken so that the courts could cope with the significant increase in deprivation of liberty cases that is expected to occur.

In that ruling the President set out his answers to 25 questions that had been identified as requiring answering if the immediate objective of a standardised approach – compliant with Article 5 of the European Convention on Human Rights – was to be carried forward.

Sir James Munby’s ruling followed the Supreme Court’s landmark judgment in March this year in Cheshire West and P & Q, which found that all three individuals in the cases had been deprived of their liberty and therefore should benefit from the relevant protections of Mental Capacity Act 2005.

Subsequent research by the Association of Directors of Adult Social Services suggested that the 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 application for leave to appeal Sir James Munby’s preliminary ruling has been made on behalf of two individuals who are deprived of their liberty.

Law firm Browne Jacobson, which is acting for the clinical commissioning group that commissions the care of one of the individuals and has been served with notification of the application, said that it related to the following two points of the ruling:

• P does not need to be a party in every case, but must be given the opportunity to be joined as a party if s/he wishes and must in any event be given as much support as necessary to participate in proceedings as much as they wish;
• if P is a party, then a litigation friend will be required (again, assuming a lack of litigation capacity). With the permission of the Court, the litigation friend can conduct proceedings without a solicitor.

An update on deprivations of liberty and due process by Browne Jacobson will appear on this site in due course.