Deprivations of liberty and representation during the review period
A High Court judge has issued a really significant judgment for COPDOL work dealing with the ongoing representation of P during the time between a court authorisation of a deprivation of liberty and the next review, writes Ben Troke.
Under a DoLS authorisation (ie a care home or hospital) P would have an RPR (Relevant Person's Representative) in place. In PQ (Court Authorised DOL: Representation During Review Period), Re [2024] EWCOP 41 (T3) Poole J held that the same protection is just as important for those who are DoL in the community.
The role of the representation is to monitor the implementation of the care package that has been authorised, elicit P's views, and (if appropriate) bring the case back to the court's attention before fixed review date.
This can be one informally by a Rule 1.2 rep, usually a family member, without P being a party to proceedings or needing a litigation friend. But in this case there was no one willing to take that role, and the local authority was unwilling to fund a professional Rule 1.2 rep.
Without explicitly generalising to the many other cases where this might arise, Poole J held that in this P's situation it would breach article 5(4) is she were not represented throughout this review period, not just when preparation for the next review starts.
It was not enough to rely on the local authority's duty to P, or to the court - access to the court should never rely on the goodwill of the detaining authority. Independent representation is essential.
In this case that meant P remaining a party and the Official Solicitor continuing as litigation friend to fulfill this role.
Aware that this shifts the burden onto the legal aid bill, and that the Legal Aid Agency might refuse to continue funding the work of the litigation friend / ALR, the Judge ordered that if funding were withdrawn the LAA must explain why, the local authority must reconsider / explain its refusal to fund a professional rule 1.2 rep, the Secretary of State would be joined to explain the lack of funding for this essential part of the procedural safeguards for P and - ultimately - it is suggested that the court may be unwilling to authorise the ongoing DoL if these article 5(4) rights are not met by effective independent representation throughout the review period.
The judge comments that addressing these issues may have been deferred due to "misplaced" expectations about the implementation of the Liberty Protection Safeguards. And in their ongoing absence, this does highlight again another apparent iniquity between those who happen to be outside care homes / hospitals when they are deprived of their liberty.
Ben Troke is a partner at Weightmans.
