Judge condemns government for ducking responsibilities on deprivation of liberty

A Court of Protection judgment has piled pressure on ministers to release funding to ensure vulnerable people in deprivation of liberty cases have access to appropriate representation.

In the case of JM & others, Mr Justice Charles placed responsibility on health secretary Jeremy Hunt and justice secretary Michael Gove for ensuring sufficient resources are available so each person whose deprivation of liberty is considered by the Court of Protection has appropriate representation. The move was branded “unprecedented” by legal experts.

Shortage of representatives

Councils must apply to the Court of Protection to authorise any deprivation of liberty in community settings, such as supported living, where the person lacks capacity to consent to their care arrangements. An independent representative must be appointed if the person does not have a family member or friend who is suitable to represent them.

Paid advocates can fill the role but the funding pressures on advocacy services, combined with a surge in demand triggered by the Supreme Court’s landmark ‘Cheshire West’ ruling on deprivation of liberty in March 2014, has led to longstanding problems securing representatives for cases reaching court.

Test cases

In JM & others, the judge ordered Hunt and Gove be added as parties in four test cases where no appropriate representative could be found for reasons that included a lack of funding for advocacy services. He also suggested all future similar cases should be adjourned until a workable solution is found.

The government argued that councils were responsible for commissioning adequate advocacy provision locally. However, the judge said the government had sought to duck its responsibilities and pass them on to local authorities while ignoring the realities of the pressures facing frontline services.

“This has the hallmarks of an avoidant approach that prioritises budgetary considerations over responsibilities to vulnerable people who the Supreme Court has held are being deprived of their liberty,” he said.

Proposed solutions

The judge ordered the secretaries of state to find a solution to the shortage of available representatives. He set out a number of potential options. These included:

• The government could contract advocacy providers directly to supply a pool of people who could be appointed as representatives in these cases.
• The government could provide local authorities with more funding to allow them to boost the capacity of the advocacy services they contract with.
• The government could make changes to legal aid.
• Further to these, or alternatively, the government could take a case back to the Supreme Court and invite it to overturn the Cheshire West ruling.

The fallout from Cheshire West

The judgment is the latest fallout from Cheshire West. The Supreme Court ruling effectively lowered the threshold of what constitutes deprivation of liberty in care. In doing so, it triggered a surge in the number of cases requiring authorisation.

Deprivation of liberty in care homes or hospitals is authorised via the deprivation of liberty safeguards (DoLS). Deprivation of liberty in community placements, such as supported living, must be authorised by the Court of Protection.

After the Cheshire West ruling, the Association of Directors of Adult Social Services (ADASS) predicted councils would need to refer around 30,000 community placements to the Court of Protection a year to comply. Research published by Community Care last year found councils made just 1.6% of the court applications they felt were needed in 2014-15.

Mr Justice Charles acknowledged that the Cheshire West ruling left agencies forced to find resources to meet major burdens at a “time of austerity”.

He said: “The provision of any such resources is highly likely, if not inevitably, to be at the cost of something else that can also be said to be important, and in the case of local authorities it is highly likely, if not inevitable, that it would be at the expense of the resources available to them to fund the placement and care of vulnerable people.

“This is an unhappy prospect but, whilst the Cheshire West conclusion remains authoritative, it is one that has to be faced by central and local government.”

The Law Society labelled today’s judgment “unprecedented”. Jonathan Smithers, the society’s president, said: “We recognise that the Court of Protection, local authority and government budgets are stretched. But those who are least able to defend themselves should not be sacrificed on the altar of austerity.

“Today’s judgment makes the government responsible for making sure vulnerable people are properly represented when important decisions are made about their care. We look forward to working with the Ministry of Justice to find a solution that is in the best interests of vulnerable people who come to the Court of Protection.”

Ray James, ADASS president, said: “We fully endorse the court’s desire to hear the voices of people needing services as strongly as possible in all proceedings, and will join work to make sure this happens.

“The court noted the extreme financial pressures facing local government, which is affecting the ability to provide paid representation…particularly in the face of an unprecedented increase in assessments. We welcome the recognition of this and will work with the courts and central government in any review.”

A government spokesman said: “We are carefully considering the judgment and will respond to the findings in due course.”