Deprivation of liberty and due process

Munby J 146x219Following the Supreme Court decision in Cheshire West, the Courts are struggling to get to grips with the practicalities of the expected deluge of cases. Lord Justice Munby has started to map out the way forward. Ben Troke looks at what the CoP President has had to say.

The Supreme Court judgment in Cheshire West leaves little doubt that large numbers of people without the capacity to consent to the arrangements should now be recognised as being deprived of their liberty in the health and social care system, for the purposes of Article 5 of the European Convention on Human Rights, and so need to have procedural safeguards in place.

How many tens of thousands of deprivation of liberty cases will have to go to Court for authorisation (where it is not a care home / hospital placement, for instance, where the Deprivation of Liberty Safeguards – DOLS – can be used) is as yet unclear. But no one disputes that we will see a fundamental change in scale from the few hundred cases each year that the Court system has been dealing with to date.

In early June, Lord Justice Munby heard a consolidated directions hearing to consider how far we could go to streamline the Court process, while still being compatible with the P’s Article 5 rights. We now have an indication of his thinking in a preliminary judgmentpublished on 7 August 2014. Note that the focus is squarely on the Court process:

“I am not here concerned to analyse the Supreme Court’s decision, nor to explore its implications as a matter of substantive law. I am concerned solely with a narrower but more pressing issue: the practical and procedural implications for the Court of Protection of what all informed opinion agrees is the large increase in its case-load which will follow in consequence of the Supreme Court’s decision” (para 1)

“The immediate objective, in my judgment, is 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.” (para 5)

Judgment

By reference to (some of) the 25 questions identified in the preparation for the directions hearing, which are appended to the judgment, the headlines are:

  • authorisation of a deprivation of liberty must be by a Judge and not a Court Official;
  • but this might be dealt with by a Judge on the papers (ie without an oral hearing in every case) subject to specific triggers for escalation to an oral hearing, for example (among others) where: the person who lacks capacity (‘P’) objects (leading to the anomaly, arguably, that P’s compliance / objection is not relevant to the issue of whether or not s/he is deprived of his liberty, but might determine whether any such deprivation is scrutinised by a judge at an oral hearing or simply reviewed on the papers); essential issues, such as P’s lack of capacity for the relevant decisions, whether or not the situation amounts to a deprivation of liberty, imputability to the state, and whether or not it is in P’s best interests, are in dispute or not adequately evidenced; the catch-all ‘if for any other reason the Court thinks that an oral hearing is necessary or appropriate’;
  • 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;

STOP PRESS! We have now been served with notice of application for leave to appeal against these last two points.

  • in any proceedings, evidence must be filed for each P, which covers, in summary: the draft Order sought; proof that P is over 16 years of age, and not ineligible to the deprived of liberty (ie under the MHA); evidence of ‘unsoundness of mind’. This must come, apparently, from a medical professional, but this could be a GP, for instance, and need not be a psychiatrist in every case. There must also be a lack of capacity to consent to the care arrangements; why it is imputable to the state; the nature of the care arrangements and why they are a deprivation of liberty; why the arrangement is necessary in P’s best interests, including evidence of consideration of less restrictive options, and why these are ruled out; P’s wishes, values and feelings, and the steps taken to notify P and others and involve them in the decision making; details of any relevant advance decision / LPA / Deputy; P’s eligibility for Public Funding (this is potentially, incidentally, quite an onerous exercise, asking the applicant to come up with a lot of detailed information about P’s financial position that may not be readily available); identify anyone who might act as Litigation Friend (assuming P lacks litigation capacity); and flag up any particular reason for urgency, or why the case might need particular scrutiny;
  • but, this evidence must be ‘succinct and focused’ and should run to no more than around 50 pages in total for any case;
  • ongoing review must also be by a Judge (not by a Court Official), should be approximately annual, and can be on the papers where appropriate, regardless of whether or not the initial deprivation was authorised on the papers or at an oral hearing;
  • separate applications will have to be made for each individual – ie there shall be no such thing as ‘bulk applications’ – because each case must be considered separately. (Implicitly, this means, of course, that the Court Application fee – currently £400 + a further £500 for a hearing - will be payable in each and every case). But there is no reason why information that is generic to a number of individuals should not be contained in a generic statement, which is attached to each relevant individual application;
  • certain Court Rules and Practice Directions require urgent revision – for instance removal of the need to apply for permission – and new Court forms will need to be prepared to consolidate and ‘front load’ all the information above, stripping out a lot of the duplication in the current forms.

 Comment

The key legal issue before LJ Munby at these hearings – whether the Court has jurisdiction to extend urgent authorisations where the local authority supervisory body has not (for resource reasons) been able to process the standard authorisation in good time – is not dealt with at all in this preliminary judgment. The temptation for managing authorities is to continue to await this before making a decision on taking such cases to Court, but this becomes increasingly uncomfortable as care homes and hospitals around the country increasingly find themselves in exactly this situation. Where a deprivation of liberty has been identified, and no lawful authorisation is in place, whether by DOLS or a Court Order, there will rightly be anxiety about the potential liabilities accruing for unlawful deprivation of liberty. The Court will surely not welcome huge numbers of additional applications in these circumstances, but judicial guidance is urgently required.

As to the issues LJ Munby does address, the desired cumulative effect is clearly to streamline the Court process as much as possible for cases outside care homes and hospitals for which an application to Court will be necessary. But some of the key decisions will necessarily severely limit the extent to which this can be achieved – for instance ruling out the use of Court officials to authorise a deprivation, or any form of ‘bulk applications’. The increase in demand on judicial resource, even with many of the cases being dealt with on the papers, will be enormous.

Even if the ‘irreducible minimum’ evidence can be distilled into a handful of pages, there is still a lot of ground for the applicant to cover, and this is likely to remain an inevitably time consuming and resource intensive process, the brunt of which will be borne by local authorities and NHS bodies, at a time of scarce and increasingly strained resources.

A large proportion of cases will still go to an oral hearing and, even with the cases which can be dealt with on the papers, it must be doubtful whether any streamlining of the Court forms / rules, in due course, can possibly bridge the gap between the few hundred cases a year the Court currently deals with and the tens of thousands, on any view, which are now likely to be required.

The revision of Court forms and practice directions is underway and we are pleased to be providing some input on early drafts, but this is not going to happen overnight, and in the meantime, of course, we will simply have to use the imperfect tools that we have today to deal with cases of ongoing unlawful deprivation of liberty, for which there is no alternative but to bring them to Court as soon as practically possible.

Practical pointers

A summary and guide to the responsibilities of CCGs is linked here and we will be updating this shortly, as well as producing specific guidance for acute and mental health trusts and local authorities. In the meantime:

  • do not forget the basic principles of the MCA or the care needs of the patient –uncertainty about deprivation of liberty must not be allowed to obstruct appropriate care or treatment;
  • providers (and commissioners) have a responsibility to deliver (or commission) care that is MCA / DOLS compliant;
  • providers and commissioners will need to liaise with each other, and with local authorities, to make sure there is clarity over strategy and responsibility for taking cases to Court – especially for instance where the commissioner does not have the case management role;
  • a measured and proportionate response – ie not making hundreds of applications in one go - may be reasonable, for practical reasons of limited resources, but may fall short of what would be required to avoid entirely any possibility of liability for unlawful deprivation of liberty;
  • so it is important to be mindful of the balance between potential liabilities and the costs of the remedial steps required, and to make sure that the senior management (and insurers) are aware, and that the situation is reflected in the organisation’s Risk Register;
  • early legal advice should be sought about the approach to be adopted to best protect the organisation’s position, as well as the rights of those in your care.

Ben Troke is a lawyer at Browne Jacobson. He can be contacted on 0115 976 6263 or This email address is being protected from spambots. You need JavaScript enabled to view it..