‘Streamlined deprivation of liberty process risks rubber-stamping local authority decisions’

Sir James Munby, President of the Court of Protection, has ruled that the court’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. In his ruling, Munby set out a broad framework for a streamlined system that would help the court deal with the surge of cases it expects in light of the ‘Cheshire West’ Supreme Court ruling, while complying with European human rights law.

We asked Roger Hargreaves, Dols lead at the Mental Health Alliance, for his reaction to the framework outlined by Munby. Here’s what he had to say:

“This is only a preliminary judgement, without reasoning or any reference to the submissions made by the 22 lawyers who appeared at the hearing, nor does it deal with the issue of urgent applications for Deprivation of liberty safeguards which local authorities can’t process within the time limits.

“Whether or not they comply with the minimum requirements of Article 5 or other ECHR Articles, the relevant question is whether these “streamlined” procedures will in practice deliver for people in supported living at least the same level of safeguards as are available to people in care homes or hospitals who are eligible for Dols. The clear answer to that is no, for four reasons.

“First of all, there is no equivalent of the relevant person’s representative or right to the support of an IMCA, and therefore no-one to protect the interests of someone who is not themself able to clearly express an objection or a wish to challenge the application. Whether or not such a wish becomes known to the judge will therefore depend entirely on the diligence and good faith of the local authority making the application.

“Secondly, there may be a very low level of medical input. It appears that all the medical evidence, including evidence of incapacity, could come from the GP, where the Dols procedure requires the medical assessor to have psychiatric experience and additional training.

“Thirdly, there is no provision for an independent best-interests assessment from a qualified assessor, which is the crucial safeguard in Dols. If they aren’t represented, the only view of the person’s best interests which the judge will hear will be that of the local authority.

“Fourthly, it is likely that most cases will be reviewed no more than annually. At least until the Cheshire West judgement, it was common practice for BIAs to make very short authorisations in order to ensure an early review and to apply pressure for changes in care arrangements to be made, and this has been one of the most valuable aspects of Dols.

“The effect of this will be that in those cases dealt with on paper only with the person unrepresented, which are likely to be the vast majority, all the evidence before the judge will be from the local authority, and unless that authority is very scrupulous in determining and reporting the person’s own views and wishes and those of their family, or in identifying potential flaws in its own argument and possible alternative course of action, even an experienced judge would be unable to do more than rubber stamp its application.”

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.