Mental health law briefing 208 – Streamlined process for Deprivation of Liberty cases
On 7th August 2014 Sir James Munby, President of the Court of Protection handed down a judgment in Re X and Others (Deprivation of Liberty)  EWCO P25.
The impact of Surrey County Council v P and Others (Equality and Human Rights Commission and others intervening), Cheshire West and Chester Council v P and another (same intervening)  UKSC 19 PTSR 460, (2014) COPLR 313 has already been felt and there has been an increase in respect of the number of cases in the Court of Protection relating to Deprivation of Liberty (DoL). This is expected to continue to rise significantly adding to the Court of Protection’s caseload.
Sir James Munby has formulated a “streamlined” process compatible with the requirements of Article 5 ECHR to enable the Court of Protection to deal with all DOL cases in a timely but just and fair way.
The guidance is not an exhaustive authorisation procedure and a second judgment is expected which will deal with the remaining issues identified in 25 questions at the initial directions hearing on 8th May 2014 which are set out at the end of this briefing. Sir James Munby’s judgment does not analyse the Supreme Court’s decision in Cheshire West nor does it consider its wider implications as a matter of substantive law. These consequences of Cheshire West will be the subject of further consideration in the future.
The preliminary Judgment of Sir James Munby answers the majority of the 25 questions to enable the streamline process to be carried forward. It is expressed to set out no more than the broad framework of what is required and it is anticipated that further detailed work will need to be carried out as soon as possible by the Court of Protection in conjunction where appropriate with the non statutory Committee which has recently been set up to review the Court of Protection Rules 2007.
The essential components of the broad framework can be summarised as follows:
- Any authorisation of a DOL by the Court of Protection should be by a Judge not a court officer.
- An initial determination can properly be made on the papers so long as there is an unimpeded right to request a speedy review at an oral hearing.
- Triggers “will indicate the need for a oral hearing and the inappropriateness of dealing with the application on paper and include:
1. Any contest whether by P or by anyone else to any of the following matters:
- Proof that P is 16 years old or more and is not ineligible to deprived of liberty under the 2005 Act.
- The basis upon which it is said that P suffers from unsoundness of mind (together with the relevant medical evidence)
- The nature of P’s care arrangements together with a copy of P’s treatment plan (and why it is said that they do or may amount to a deprivation of liberty).o The basis upon which it is said that P lacks the capacity to consent to the care arrangements (together with the relevant medical evidence).
- The basis upon which it is said that the arrangements are or may be imputable to the state.
- The basis upon which it is said that the arrangements are necessary in P’s best interests and why there is no less restrictive option (including details of any investigations into less restrictive options and confirmation that a best interests assessment, which should be attached, has been carried out).
2. Any failure to comply with the requirements to take steps to notify P and all other relevant people in P’s life (who should be identified) of the application and to canvass their wishes, feelings and views.
3. Any concerns arising out of information supplied as a result of any relevant feelings and wishes expressed by P and any views expressed by any relevant person; any reasons for particular urgency in determining the application and any factors that ought to be brought specifically to the Court’s attention (the applicant being under specific duty to make full and frank disclosure to the court of all facts and matters that might impact upon the court’s decision ) being factors:
- Needing particular judicial scrutiny; or
- Suggesting that the arrangements may not in fact be in P’s best interests or be the least restrictive option; or
- Otherwise indicating that the Order sought should not be made.
4. Any objection by P
5. Any potential conflict with any decision such as any relevant advance decision by P and any relevant decisions under a lasting power of attorney or by P’s deputy (who should be identified).
6. If for any other reason the Court thinks that an oral hearing is necessary or appropriate.
- Evidence provided must ensure compliance with Article 5 i.e
• Medical evidence establishing unsoundness of mind,
• Of a kind warranting the proposed measures and;
• Persisting at the time when the decision is taken.
- Professional medical opinion is necessary to establish on soundness of mind where the facts are clear this need not involve expert psychiatric opinion (there will be cases where a general practitioners evidence will suffice).
- Evidence should be succinct and focused and statements and reports need not be lengthy.
- P must be able to participate in the proceedings in such a way as to enable P to present their case “properly and satisfactorily”. P should be given the opportunity to be joined if they wish and whether joined as a party or not, must be given the support necessary to express views about the application and to participate in the proceedings to the extent that they wish. So long as that demanding standard is met, there is no need for P to be a party.
- If P is a party, they must have a litigation friend but, the litigation friend does not have to act by a solicitor and can conduct the litigation on behalf of P.
- A Deprivation of Liberty authorised by the Court of Protection should typically be reviewed approximately annually unless circumstances require a shorter period.
- A review of Deprivation of Liberty does not require an oral hearing in every case.
- Separate applications must be made for each individual but generic information could be contained in a single “generic” statement a copy of which could be attached to each individual application form.
- The Application should deal with the following matters either in the body of the application form or in attached documents:
i) A draft of the precise order sought, including in particular the duration of the authorisation sought and appropriate directions for automatic review and liberty to apply and/or seek a redetermination in accordance with Rule 89.
ii) Proof that P is 16 years old or more and is not ineligible to be deprived of liberty under the 2005 Act.
iii) The basis upon which it is said that P suffers from unsoundness of mind (together with the relevant medical evidence).
iv) The nature of P’s care arrangements (together with a copy of P’s treatment plan) and why it is said that they do or may amount to a deprivation of liberty.
v) The basis upon which it is said that P lacks the capacity to consent to the care arrangements (together with the relevant medical evidence).
vi) The basis upon which it is said that P lacks the capacity to consent to the care arrangements (together with the relevant medical evidence).
vii) The basis upon which it is said that the arrangements are necessary in P’s best interests and why there is no less restrictive option (including details of any investigation into less restrictive options and confirmation that a best interests assessment, which should be attached, has been carried out).
viii) The steps that have been taken to notify P and all other relevant people in P’s life (who should be identified) of the application and to canvass their wishes, feelings and views.
ix) Any relevant wishes and feelings expressed by P and any views expressed by any relevant person.
x) Details of any relevant advance decision by P and any relevant decisions under a Lasting Power of Attorney or by P’s deputy (who should be identified).
xi) P’s eligibility for public funding.
xii) The identification of anyone who might act as P’s litigation friend.
xiii) Any reasons for particular urgency in determining the application (the recently introduced Family Court children application forms provide a useful precedent).
xiv) Any factors that ought to be brought specifically to the court’s attention (the Applicant being under a specific duty to make full and frank disclosure to the court of all facts and matters that might impact upon the court’s decision), being factors:
(a) needing particular judicial scrutiny; or
(b) suggesting that the arrangements may not in fact be in P’s best interests or be the least restrictive option; or
(c) otherwise indicating that the Order sought should not be made.
New application forms will be required to be developed and their use made mandatory. In the meantime, it is suggested that, applications should be made on the basis of the guidance and with reference to the requirements as set out.
The 25 Questions set out in the Order of 8th May 2014
Article 5(1) EHR
1 Can an official of the Court of Protection authorise a deprivation of liberty of an individual, or must such authorisation be judicial in order to comply with Article 5(1) ECHR?
2 Can an initial application to the Court of Protection to authorise the deprivation of liberty of an individual be determined on the papers (with a right to direct an oral hearing and/or for any person or body involved to request an oral hearing or review) or does it require an oral hearing in order to comply with Article 5(1) ECHR?
3 If an initial application can in principle be determined on the papers, how is the Court of Protection to identify which cases should be dealt with o the papers and which at an oral hearing?
4 What are the irreducible matters that must be addressed in evidence before the court before it can make an order satisfying the requirements of Article 5(1)(e) ECHR?
5 What form should such evidence take (including medical evidence)?
6 Can an urgent authorisation granted pending completion of assessments for an application for a standard authorisation under Part 5 Schedule A1 of the MCA be extended by the court following an application for an order made under section 21A(5) of the MCA and would such an application require an oral hearing to comply with Article 5(1) ECHR?
7 Does P need to be joined to any application to the court seeking authorisation of a deprivation of liberty in order to meet the requirements of Article 5(1) ECHR or Article 6 or both?
8 Does the detained resident need to be joined to any application under section 21A of the MCA 2005, for the same reasons?
9 If so, should there be a requirement that P (or in an application under section 21A of the MCA 2005 the detained resident) must have a litigation friend (whether by reference to the requirements of Article 5 ECHR and/or by reference to the requirements of Article 6 ECHR)?
Article 5(4) EHR
10 If it is possible to extend an urgent authorisation by court order under section 21A of the MCA what is the maximum period of extension before the court must review the extended urgent authorisation to comply with Article 5(4) ECHR?
11 What frequency of review is required by Article 5(4) ECHR where a deprivation of liberty has been authorised by the Court of Protection?
12 Must such review be judicial?
13 Can such review take place on the papers, or does it require an oral hearing?
14 Does the answer to the question above depend upon the nature of the initial authorisation procedure (i.e whether it follows an oral or a paper-based authorisation procedure)?
15 What obligations does Article 5(4) ECHR impose by way of the party status of P at the review stage? Does this differ depending on whether they have been a party at the initial application stage?
Implications – litigation friends
16 If P or the detained resident requires a litigation friend, then:
a. Can a litigation friend who does not otherwise have the right to conduct litigation or provide advocacy services provide those services, in other words without instructing legal representatives, by virtue of their acting as litigation friend and without being authorised by the court under the Legal Services Act 2007 to do either or both?
b. In all cases, how are the costs of instructing legal representatives to be met?
The COPR 2007, Practice Directions and Forms
17 What are the requirements necessary to ensure that any “streamlined” procedure for applications … complies with Article 5 and/or 6 of the ECHR?
18 Which of the COPR 2007 would require amendment (and, if so, how) to enable a “streamlined” Article 5 ECHR compliant process?
19 Which of the Practice Directions would require amendment (and, if so, how) to enable a “streamlined” Article 5 ECHR-compliant process?
20 Which of the current COP Forms would require amendment (and, if so, how) to enable a “streamlined” Article 5 ECHR-compliant process? How would urgent applications be identified?
21 Would “bulk” applications be lawful? If so, what documentation would be required in order to ensure appropriate assessment of the circumstances of each individual concerned?
22 Where should applications to authorise deprivation of liberty be issued and determined and, in particular, what is the role of the regional Court of Protection courts and Judges?
23 Should any procedure developed to meet the principles set out above also encompass the position of those aged 16 and 17?
24 Should any procedure developed to meet the principles set out above also encompass the position of those subject to residence requirements under the Mental Heal6th Act 1983 (eg guardianship or Community Treatment Order or those subject to conditional discharges pursuant to s.37/41 of the Mental Health Act 1983)?
25 To the extent that they have not already been addressed, are there any remaining obligations under Articles 6 and 8 ECHR that bear upon the matters identified above?
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This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.