The Court of Protection’s system for handling deprivation of liberty cases can be ‘streamlined’ so that initial decisions are made on paper evidence alone without the need for an oral hearing, a senior judge has ruled.
Sir James Munby, President of the Court of Protection, handed down a long-awaited preliminary judgement that sets out a ‘broad framework’ for a streamlined system that complies with European human rights law. It is designed to help the court cope with the “very significant increase” in deprivation of liberty cases it faces in light of the Supreme Court’s ‘Cheshire West’ ruling in March, which effectively lowered the threshold for what constitutes deprivation of liberty in care (see box).
The ‘Cheshire West’ ruling means that many people are likely to have been deprived of their liberty unlawfully in settings, including care homes and supported living placements. Cases involving care homes and hospitals are covered by the deprivation of liberty safeguards (Dols) and handled outside of the court but deprivations of liberty in other settings, notably Supported Living and shared lives schemes, require an application to the Court of Protection to authorise them.
The ‘Cheshire West’ ruling
On March 19, in the cases of P v Cheshire West and Chester Council and P&Q v Surrey County Council – the Supreme Court ruled that people are deprived of their liberty if they are in care arrangements that are the responsibility of the state and:
- Lack the capacity to make decisions about their care and residence and;
- Are subject to continuous supervision and control and;
- Lack the option to leave their care setting.
In doing so the court threw out previous judgements that had defined deprivation of liberty more restrictively.
ADASS research found that, in light of the Cheshire West ruling, councils estimate that the number of applications they make to the Court of Protection to authorise deprivations of liberty in settings not subject to Dols will hit 18,633 in 2014-15, up from 134 in 2013-14.
Munby said his immediate objective was to establish the feasibility of designing a ‘streamlined’ system to help the court meet the rise in demand while remaining compliant with article 5 of the European Convention of Human Rights, which provides that everyone has the right to human liberty and security.
“The process needs, if this is feasible, to distinguish between those [deprivation of liberty] cases that can properly be dealt with on the papers, and without an oral hearing, and those that require an oral hearing. In my judgment, that objective is feasible and can be achieved,” Munby said.
In the ruling, Munby sets out his answers to 25 questions about potential streamlining options that were considered at a preliminary hearing on 5 June, where 22 lawyers representing parties including the health secretary, local authorities and NHS providers and commissioners gave evidence.
Setting out the principles of a ‘streamlined’ process, Munby said that some cases could be initially determined on paper evidence alone as long as a “sufficiently robust process” is in place and there is an “unimpeded right to request a speedy review” of the decision at an oral hearing. The ruling sets out a series of ‘triggers’ that would indicate cases that were unsuitable for fast-tracking and would require an oral hearing. The ‘triggers’ include applications where evidence is contested.
Despite the right to review, concerns have been raised that the stripped-back process could lead to the court ‘rubber stamping’ local authority decisions.
On the question of what form evidence should take, Munby ruled that professional medical opinion on unsoundness of mind was necessary but said “where facts are clear this need not involve expert psychiatric opinion”. In those cases a GP’s evidence would suffice, he said. Munby also said that ‘streamlined applications’ should not exceed “something in the order” of 50 pages including the evidence, application and supporting material. On the issue of reviews, Munby said that typically cases should be reviewed annually.
Other suggestions for speeding up the process heard at the June hearing were rejected. Munby ruled that deprivation of liberty cases could not be authorised by court officers rather than judges. He also found that allowing authorities to submit ‘bulk applications’ would not be lawful and said that each case “must be considered separately and on its own merits”.
Work on the streamlined system must be carried out as soon as possible by the Court of Protection and associated committees, Munby said. A further judgement would follow in due course, elaborating on the reasons for his preliminary judgement and addressing certain questions not dealt with in it, he added.
Book your place for our conference – ‘Implementing the Mental Capacity Act and Deprivation of Liberty Safeguards: Effectively balancing risk vs rights within the law’. The event takes place on 24 October in central London.