Deprivation of Liberty: “Unsound mind” and mental impairment

A recent case has looked at the evidence that the Court requires to establish that P has a mental impairment and is of “unsound mind” for the purposes of authorising a deprivation of liberty (including under the streamlined procedure).

Stockport Metropolitan Borough Council v KB & Ors [2023] EWCOP 58 considered the use of the terminology “unsound mind” and confirmed the importance of medical evidence in this regard. 

Whilst this case concerned an application under the CoPDoL11 streamline procedure, its conclusions are applicable to all cases where a person’s deprivation of liberty is being authorised under Article 5 (including the DoLS process operated by the Local Authority or wider s.16 welfare proceedings in the Court of Protection).

Whilst there are a large number of streamlined applications before the Court, there are not many reported cases that consider the specific requirements of the procedure and it is therefore helpful for professionals and commissioners involved in seeking authorisation of such care arrangements to consider the clarification in this case.

It also recognised that the difficulty that sometimes arises in streamlined cases in obtaining evidence from GPs of “unsoundness of mind”. Many CoPDoL11 applications are supported by a letter from P’s GP to provide the requisite medical evidence. Some GPs felt that the current terminology "of unsound mind" was not an appropriate diagnostic label, and the wording in letters evidencing P’s mental disorder had changed from "unsound mind" to "mental impairment".

The Judge in this case noted that a number of applications by Stockport Council had been rejected by the Court because the medical evidence requirement had not been met. The Judge did “not consider that a judge making a decision as to whether P is of unsound mind has to see those exact words used by a clinician in the evidence given. What the Judge must receive is reliable evidence of mental disorder”.

In the particular case before the Court, no medical evidence had been submitted and therefore a direction for a medical report from a doctor was made.

The case provides the following useful guidance for the evidence required to support an application for authorisation of a deprivation of liberty:

• On the basis of evidence: To authorise a package of care, the Court must receive evidence and be satisfied that P suffers from “unsoundness of mind”. In terms of what evidence is required for unsoundness of mind the Judge stated “…these words have no mystical powers; they are not an “open sesame” giving access to the Article 5 cave. They refer to a mental disorder”.
• Medical evidence: "unsoundness of mind" has to be proved by those seeking to assert it on sound medical evidence. Usually that evidence will come from a medical doctor, generally a psychiatrist or General Practitioner.
• Evidence must be in date: The medical evidence may take the form of a letter setting out the diagnosis, including reference to whether P is of 'unsound mind', the name of the practitioner and their qualifications. The evidence should not be more than 12 months old.
• Alternatives: In cases where suitable separate mental health evidence is not readily available, then it would be acceptable to provide the assessment of capacity and mental health assessment as a single document using form COP3, but the combined evidence must be provided by a registered medical practitioner. 

The streamlined process allows the Court to grant authorisations to enable community placements to be made lawful without the need for contested hearings. Many thousands of people across the country need community placements and the cost for health and social care organisations of instructing lawyers for each application is very high. We have designed a web-based portal which allow front-line staff to complete an on-line questionnaire, prepare the necessary care documents and enable automatic preparation of court papers. The application is checked by a qualified lawyer but otherwise all document preparation is automated.

The normal cost of such an application, even if managed and undertaken by a junior lawyer could easily run to several thousand pounds per case. Our service operates on a fixed fee and reduces the cost to a fraction of that.

This article was co-written by Molly Churchman, Paralegal.