Safeguards over deprivations of liberty are “indispensable” to frail and vulnerable, says senior judge, amid “striking and troubling” drop in number of s.21A applications

May 15, 2020

The view that careful adherence to proper legal process and appropriate authorisation of deprivations of liberty may now, at times, be required to give way to other pressing welfare priorities is “entirely misconceived”, the Vice President of the Court of Protection has warned.

In a letter to Directors of Adult Social Services (H/T the Court of Protection Handbook), which can be read here, Mr Justice Hayden said: “I understand how this view might take hold in establishments battling to bring calm and reassurance to intensely distressed people, both in the care homes and within their wider families. It is important, however, that I signal that whilst I am sympathetic to the pressures, I am very clear that any such view is entirely misconceived.

“The deprivation of the liberty of any individual in a democratic society, holding fast to the rule of law, will always require appropriate authorisation. Nothing has changed. The Mental Capacity Act 2005, the Court of Protection Rules and the fundamental rights and freedoms which underpin them are indispensable safeguards to the frail and vulnerable.”

The Vice President said that there had been “a striking and troubling drop” in the number of Section 21A (MCA 2005) applications which has occurred, in some areas, alongside a significant reduction in referrals to advocacy services.

“It needs to be emphasised that where there has been a failure properly to authorise deprivation of liberty one of the consequences is that, in the absence of authorisation, there will be a loss of entitlement to public funding and inevitably an obstruction to the individual's absolute right to challenge the deprivation of liberty. For the present I simply highlight my concern and restate the importance of the statutory requirements.”

In the letter Mr Justice Hayden also said, amongst other things, that:

Those who are subject to litigation in the Court of Protection (P) are amongst those most vulnerable to the privations which arise in consequence of the need to protect public health.
The protection afforded to this group of people by the Mental Capacity Act 2005 is constructed in a way which promotes autonomy, guards liberty and seeks to identify best interests. “It requires to be said, in terms which permit of no ambiguity, that these principles have, if anything, enhanced importance in times of national emergency.”
The Court of Protection has adapted to the exigencies of remote hearings “with an alacrity that few would have thought possible only months ago. This has been achieved by the concerted efforts of all involved.”
He was very conscious that those on the front line and particularly those in the care home system, have come under great pressure on many fronts. “I am aware, from a variety of sources, that many carers have given selflessly and unstintingly of their time and energy.”
Deprivation of liberty will always require strong and well-reasoned justification. “The obligation to keep this in review has not diminished in any way in the present circumstances.”
He was “very clear” that assessments of capacity could be conducted ‘remotely’ with both competence and fairness in the vast majority of cases. “Key to this is the involvement of carers and family in the process. The incorporation of these important sources of information will, I strongly suspect, be a feature of the assessment process long after the present public health emergency has passed.”

The Vice President said he was greatly impressed with the protocol put in place by Ms Lorraine Currie, professional lead for Shropshire Council, who chairs the national DoLS leads groups.

This protocol was appended to the letter, “in the hope that it may be considered and perhaps developed to formulate a consistent national approach”.

The judge said he was passing it on to directors of adult social services because it struck him as an effective way of respecting the autonomy of people in care homes and the continuing application of the fundamental principles of the Mental Capacity Act 2005 “in what will be, at times, challenging circumstances”.