Court of Protection should not summarily dismiss cases where liberty is at stake, says senior judge

Court of Protection judges should not summarily dismiss cases where someone’s liberty is at stake, Mr Justice Hayden, Vice President of the court, has said.

His ruling came in CB v Medway Council & Anor (Appeal) [2019] EWCOP 5. CB is 91-years-old. She is deprived of her liberty and as lived in a care home since September 2017, but having objected to this an application was made on her behalf by the Official Solicitor to the Court of Protection.

Medway agreed to determine the feasibility and costs of a live-in carer but in November 2018 a judge summarily dismissed the application without any evidence being filed by Medway or CB’s nephew.

Hayden J said: “What is involved here is nothing less than CB’s liberty.”

HHJ Backhouse heard the case last November and concluded that the care home was appropriate to meet her needs.

She said then: “Therefore, while I hear what the Official Solicitor says , I do not think that it is proportionate to make this local authority spend the time and cost of going through a balancing exercise which will tell me what I already know in terms of the difficulties, risks and cost of a package of care at home.

“In my judgment, the evidence is already there to show that the risks of returning home outweigh the benefits to CB of such a return.  It is in CB’s best interests to remain where she is, properly looked after and safe.

“Therefore, for those reasons, I consider that the deprivation of liberty is justified, and I will dismiss this application.”

Hayden J said: “It is easy to see why the judge took the course she did and I have a good deal of sympathy with her.

“She will have recognised, as do I, that the effluxion of time has had its own impact on the viability of the options in this case.

“However, what is involved here is nothing less than CB’s liberty. Curtailing, restricting or depriving any adult of such a fundamental freedom will always require cogent evidence and proper enquiry.

“I cannot envisage any circumstances where it would be right to determine such issues on the basis of speculation and general experience in other cases.”

Oliver Lewis of Doughty Street Chambers, instructed by Bison Solicitors, appeared for the Appellant.

Sian Smith appeared for Medway Council.

Mark Smulian