Court of Appeal ruling means streamlined deprivation of liberty process is fatally flawed

By Ben Troke

This morning, the Court of Appeal handed down a landmark judgment on the ‘Re X’ process for authorising deprivations of liberty in the community.

Cheshire West

This is the latest chapter in a story that started last March when, in the Cheshire West judgement, the Supreme Court clarified the definition of a deprivation of liberty as a person being “under continuous supervision and control and not free to leave” the place they were in, regardless of whether this arrangement would be appropriate or ‘normal’ for a person with those particular needs.

This made it obvious that there were tens or hundreds of thousands of people who are deprived of their liberty by the arrangements made by the state for their health and social care who lack capacity to consent to this. Their right to liberty and security under Article 5 of the European Convention on Human Rights rights would be breached unless a due legal process were in place to review and authorise this. Without this, people deprived of liberty unlawfully would have a right to compensation.

Colossal increase in cases

The result was a colossal increase in applications to the Deprivation of Liberty Safeguards (Dols) system, which exists to allow authorisation of a deprivation of liberty in a care home or hospital setting only. But arguably the greater challenge concerned cases in other settings, for example for people with dementia or learning disability in their own homes or supported living who have very intensive care packages likely to amount to being under continuous supervision and control and not being free to leave.

For those cases, outside the scope of Dols, the deprivation of liberty can only be lawfully reviewed and authorised by the Court of Protection. Following Cheshire West, no one knew how many applications to court will have to be made to authorise or review such placements, but it would certainly be tens of thousands.

The onus would on the public body responsible for the situation to bring the case to court – usually the local authority or CCG which commissions the care package that may amount to a deprivation of liberty.

In the light of Cheshire West, the court processes previously in place for handling these cases, geared and resourced to deal with a couple of hundred such cases a year, needed serious rethinking.

Re X

This is what Court of Protection president Sir James Munby was trying to achieve in proceedings, which came to be known as ‘Re X’, in which he pulled together a sample of relevant cases, and convened a hearing in June 2014. At this, many individual parties, as well as representatives from government, local government, the Law Society and other interested parties, addressed him on the kind of process that should be implemented.

In August and October 2014 Sir James Munby published judgments in which he set out his thinking on some of the key procedural and practical issues. He asserted, for example, that it was permissible for a process to review a deprivation of liberty without P (the person deprived) being a party to proceedings, and that while such cases must be reviewed by a judge, rather than a court official, this could be done on the papers, without a hearing, where there was no substantive dispute.

Reflecting these judgments, a new practice direction and Court of Protection form (COPDOL10) were published in November 2014, establishing the ‘Re X’ process along these lines, and a raft of judges around the country have been trained up, ready to deal with the expected flood of cases.  There’s also been an amendment to the Court of Protection Rules, due into force on 1 July 2015, which requires the court to consider whether P’s participation can be secured and interests protected in another way, without being a party to proceedings.

The appeal

Two of the individuals in the Re X cases went to the Court of Appeal arguing, among other things, that a process determining their deprivation of liberty without them being a party was not fair and breached their human rights. Others joined the appeal on related issues for a hearing in February 2015.

Each of the individual appellants had in fact been made a party to the proceedings to review their deprivation of liberty, and so had arguably no standing to say that they were adversely affected by the Re X approach. That said, when the court did hear argument about the issue of party status, there was a lot of doubt that the process could be fair if P was not to be joined as a party.

The judgment published this morning includes a fully reasoned contribution from each of the three judges, led by Lady Justice Black. The headlines are that:-

1. Though sympathetic with the challenges facing Sir James Munby, all three judges were critical of the unorthodox approach taken to deal with the issues (for example, in paragraphs 58, 127 and 146 of the judgement).
2. However, they concluded that the Court of Appeal had no jurisdiction to overturn the ‘Re X’ process, which should instead be properly challenged by judicial review against the practice direction (paragraph 50).
3. Crucially, they all said that if they actually did have the jurisdiction to decide this, they would have said that P should be a party to any deprivation of liberty proceedings.

Why P should be a party

On the last point, Lady Justice Black said: “…it is not appropriate in my view for P’s participation in proceedings to turn in any way upon whether he wishes to participate, or indeed on whether he expresses an objection to the form of care that is being provided or proposed. There is too high a risk of slips ups in such a scheme.  Article 5 requires greater protection from arbitrariness.

“I do not go so far as to say that no scheme in relation to deprivation of liberty would comply with Article 5 unless it provided for deprivation of liberty proceedings in which P was formally a party … [but] given the tools presently available in our domestic procedural law, I see no alternative to that being so in every case.” (paragraphs 103-104)

Lady Justice Gloster said that Sir James Munby’s conclusion that P need not be a party “is not consistent with fundamental principles of domestic law and does not provide the degree of protection required by the Convention or the Strasbourg jurisprudence” (paragraph 127). Lord Justice Moore-Bick said essentially the same thing at paragraph 171.

A fatally flawed process

Strictly, the views on the substantive issue of P’s party status is just non-binding as the court had already decided that it didn’t have jurisdiction to decide these issues in this appeal. But there’s no doubt that this leaves the current Re X process in confusion, if not fatally flawed.

There is already grave concern at the relative small take up of the Re X process, with only 200 or so applications made to date nationwide, and this reversal for attempts to streamline the process may not help encourage more engagement.

If P must be a party to any proceedings, with a litigation friend, and all the issues of access to representation and funding which that involves, this will inevitably be a lot less streamlined than Sir James Munby may have hoped, with consequences for delay, costs and the resources and time needed generally to get the huge number of cases through the process.

Law Commission review

Unfortunately, the ‘cavalry’ – the Law Commission proposals for reform of the whole system – is still some distance away. Though its consultation is due out in a few weeks on 7 July 2015, draft legislation is expected to be two years behind that in Summer 2017, and will take some time to implement, even if adopted.  Though there may now be even more pressure to accelerate that timescale, with a debate in Parliament scheduled for tomorrow afternoon, it is hard to see any new system being in place sooner than 2018.

In the meantime, and despite the best attempts of some judges to pare back the impact of Cheshire West by finding ways to disapply it in community settings, we have the ongoing problem of widespread unlawful deprivation of liberty, potentially incurring significant liabilities and, for the community settings in particular where Dols cannot be used, the well intentioned attempt to produce a ‘streamlined’ route through the Court of Protection now in some confusion.

Worst of all words

We await any formal response from the Court of Protection or the Ministry of Justice with interest, but this is not just of academic interest. At the frontline we risk being left with the worst of all worlds – with individuals identified as having rights without the practical means for these to be readily implemented, and already stretched public bodies with obligations that cannot practically be met. The cavalry cannot arrive soon enough!

Ben Troke is a partner at the law firm Browne Jacobson and head of its health and social care advisory team. This article was originally published in Browne Jacobson’s health law bulletin.