Deprivation of liberty court application numbers hit record high

Court of Protection received just over 2,000 deprivation of liberty applications in January to March 2024, up 30% on the same period a year earlier

By Mithran Samuel on July 1, 2024 in Adults

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The number of court applications in England regarding deprivation of liberty under the Mental Capacity Act 2005 (MCA) has reached a record high, show Minister of Justice (MoJ) figures.

The Court of Protection (CoP) received 2,022 such applications from January to March 2024, the highest figure recorded in the MoJ’s family justice statistics series and a third higher than the quarterly average since April 2020 (1,526).

The cases were a mixture of challenges to Deprivation of Liberty Safeguards authorisations and applications from councils and other bodies to confine people not covered by DoLS: 16- and 17-year-olds and adults not placed in care homes or hospitals, for example, those in supported living or shared lives settings.

The biggest rise in case numbers concerned so-called Re X applications, which provide a streamlined procedure for the CoP to authorise deprivations of liberty, outside the scope of DoLS, where the case is not contentious.

The number of these in the first quarter of 2024, 1,211, was the second highest quarterly total ever and 27% higher than the average for the past four years.

The Re X procedure for community DoL cases

The Re X procedure was a response from the judiciary to the expected hike in CoP applications following the Supreme Court’s landmark 2014 Cheshire West judgment, which greatly expanded the definition of a deprivation of liberty.

It enables the court to authorise a person’s deprivation of liberty under the MCA – in cases where the DoLS does not apply – without the need for a hearing, so long as the case is not contentious.

Applicants – generally councils or NHS bodies – must provide similar information to the court to that required through the DoLS assessment process. This includes evidence that:

The person has been assessed by a doctor as having a mental health condition.
The person has been assessed as lacking capacity to make relevant decisions about their care and residence.
The person is deprived of their liberty, that this is in their best interests, necessary to protect them from harm and a proportionate response to the expected harm.
That applicants have consulted the person, anyone named by them as requiring consultation, any carer, anyone interested in their welfare or any attorney or deputy.

They must also propose someone to act as a court-appointed representative – known as a rule 1.2 representative – to help uphold their rights during the process.

The judiciary has also set out a series of “triggers” that may indicate that a case is not appropriate for the Re X process, including that the person is objecting to the placement or contesting aspects of the application. In KL (A Minor: deprivation of liberty) [2022] EWCOP 24, the CoP ruled that the streamlined process was unlikely to be appropriate for cases involving 16- and 17-year-olds.

Where a case is deemed inappropriate for Re X, applicants must apply to the court for a personal welfare decision under section 16(2)(a) of the MCA, which would generally involve a court hearing.

The MoJ data classified 158 applications in January to March 2024 as being brought under section 16 of the MCA, compared with an average of 117 over the past four years. These are likely be cases that are not suitable for the Re X process, for example, where the person is objecting to their placement or is aged 16 or 17 (see box above).

High numbers of DoLS challenges

Meanwhile, there was a record number of applications to vary or terminate DoLS authorisations, with 653 such cases from January to March 2024, 43% above the quarterly average for the past four years.

These applications are brought by the person subject to the authorisation or, on their behalf, by their relevant person’s representative (RPR), and are eligible for legal aid.

They can challenge whether the person meets the qualifying requirements for DoLS, the duration of the authorisation, its purpose and the conditions placed on it.

The number of such challenges, which must be responded to by councils, has been trending upwards over the past few years, with a quarterly average of 447.5 in 2021, 475.8 in 2022 and 512 in 2023.

This is likely, in part, to reflect the year-on-year increases in the number of people subject to DoLS in England, with 126.995 authorisations granted in 2022-23 up from 105,225 in 2020-21.

There was also a spike in the number of deprivation of liberty-related orders issued by the CoP in response to these applications, with 1,448 granted in the first quarter of 2024, compared with a quarterly average of 1,319 in 2023.

What about the Liberty Protection Safeguards?

The record number of CoP applications comes with DoLS case numbers also being at record levels, exacerbating already severe pressures on councils and the rest of the social care and health system.

To address such pressures, the government had legislated in 2019 to implement a new system – the Liberty Protection Safeguards (LPS) – designed to provide a streamlined alternative to both DoLS and CoP-authorised deprivations of liberty.

However, its implementation has been repeatedly delayed and, last year, it was shelved until beyond the forthcoming election. Ahead of polling day this week, neither the Labour nor Conservative parties have set out plans to implement LPS should they win.

Court of Protection, deprivation of liberty, Deprivation of Liberty Safeguards