Following last year's Supreme Court landmark judgments (P v Cheshire West and Chester Council; P & Q (aka MIG and MEG) v Surrey CC  UKSC 19) an increased number of incapacitated adults in supported living arrangements across England and Wales now fall within the ambit of being deprived of their liberty. In considering whether a person is deprived of his or her liberty, attention should focus in particular on whether the person concerned is under continuous supervision and control and whether that person is free to leave.
In order to validate such care arrangements for people whose arrangements do not fall under the deprivation of liberty provisions of the Mental Capacity Act, 2005 (i.e. they are not in hospitals or care homes), it is necessary to apply to the Court of Protection. Given that this will result in a plethora of applications to the Court of Protection, the President of the Court of Protection, Lord Justice Munby, selected a number of cases for the purpose of a directions hearing in which he considered the method in which these cases should be dealt with by the Court (Re X( 1) and Re X (2)). In his judgments, Lord Justice Munby paved the way for a "Streamlined Procedure" to deal with deprivation of liberty cases concerning persons in supported living arrangements.
On 17 November 2014, the new procedure for the judicial authorisation of deprivation of liberty in settings outside hospitals and care homes came into effect. The procedure implements the judgments of Lord Justice Munby. It is set out in new Practice Direction 10AA: Deprivation of Liberty applications, which is accompanied by a new application form, COP DOL10.
Streamlined Procedure – What does this mean?
The Streamlined Procedure allows for authorisation of a deprivation of liberty ("DoL") by the Court of Protection without the need to necessarily go to court, thereby minimising costs and the time expended by all involved.
It remains the case that any authorisation of a DoL by the Court of Protection must be made by a Judge, not a court officer. Lord Justice Munby ruled that the initial determination to authorise the DoL of an individual properly made on papers alone, without an oral hearing in court, does not infringe Article 6 of the European Convention of Human Rights ("ECHR") (right to fair trial).
There is an unimpeded right to request a reconsideration at an oral hearing.
Practically, how is this done?
To bring proceedings, the Applicant must file an application using form COP DOL 10.
This form is specifically devised to ensure that the Applicant provides the court with the essential information and evidence as to the proposed measures, on the basis of which the court may identify whether a case is suitable for consideration without oral hearing and adjudicate as to the appropriateness of authorising a Deprivation of Liberty.
The form is prescriptive. The use of it is mandatory and it must be fully completed with frank disclosure to the court of all factors either in favour or against the grant of the court's authorisation. The form must be verified by a statement of truth and accompanied by all annexes and evidence required therein. The evidence should be succinct and focussed and not exceeding 50 pages.
A separate application must be made for every individual for whom the Applicant requests an authorisation of deprivation. However, there may be common care arrangements which can be covered by a generic statement.
What information is required?
The main body of the form should detail any reasons for particular urgency in determining the application, to allow the DoL Team within the Court of Protection to expedite the matter if necessary.
In addition, the main body of the form requires the following information:
- The Parties' details;
- Whether the Applicant applying for permission to make the particular application;
- Previous decisions already made; and
- Statement of Truth.
There remains a duty of full and frank disclosure upon the Applicant to disclose to the court all facts and matters that may have an impact. Evidence should be clearly identified which:
- needs particular judicial scrutiny;
- suggests the arrangements in relation to which authorisation is sought may not in fact be in the best interests of the person the application is about, or the least restrictive option; or
- is otherwise tending to indicate that the Order should not be made.
A draft of the Order sought should be submitted which details the duration of the proposed authorisation and directions for automatic review.
Annex A: Evidence in support of an application to authorise a deprivation liberty
In order to ensure compliance with Article 5 of the ECHR (right to liberty) the applicant must provide:
- medical evidence establishing unsoundness of mind which causes a lack of capacity
- of a kind warranting the proposed measures and
- persisting at the time when the decision is taken.
The nature of the person's care arrangements and why it is said that they do or may amount to a DoL should be clearly set out. The basis upon which it is said that the person lacks capacity to consent to the care arrangements (with medical evidence) must be set out and the basis on which the arrangements are or may be attributable to the State.
Again, the form is prescriptive and Annex A requires the following information:
- Assessment of capacity (medical evidence);
- Mental Health Assessment – Unsoundness of Mind (medical evidence);
- Factual circumstances relating to the deprivation of liberty (considering whether the person is free to leave their residence and what type of supervision arrangements are in place); and
- Statement of best interests detailing which (less restrictive) options have been tried or considered and why the proposed measure is proportionate.
Annex B: Consultation with people with an interest in the application to authorise a deprivation of liberty
Prior to lodging the application, the Applicant must ensure that the following people are consulted about the intention to make the application:
- Any donee of a Lasting Power of Attorney granted for the person;
- Any Deputy appointed for the person by the court;
Together with, if possible, at least three people from the following categories:
- Anyone named by the person as someone to be consulted; and
- Anyone engaged in caring for the person or who has an interest in his or her welfare.
The Applicant must canvass such persons' wishes, feelings and views. The Practice Direction is prescriptive in relation to what is to be discussed within the consultation and it is important that this is done fully. In the event that these persons are not consulted, the application form should provide an explanation for this.
Annex C: Consultation with the person the application is about (in support of an application to authorise a deprivation of liberty)
Article 6 of the ECHR (right to fair trial) requires that the person the application is about should be able to participate in the proceedings in such a way as to enable him or her to present their case "properly and satisfactorily". Prior to lodging the application, a detailed consultation with the person must take place and Annex C must evidence this consultation.
The person the application is about should always be given the opportunity to join proceedings if he or she wishes. Whether joined as a party or not, the person must be given the support necessary to express views about the application and to participate in the proceedings as far as possible. The person may participate and be represented in the proceedings without being joined as a party.
Provided the court is satisfied as to the adequacy of consultations, the court may then choose to dispense with notification of the issue of the application.
The Applicant must also supply:
- COP3 Evidence of capacity;
- Mental Health Assessment;
- A copy of any relevant Advance Decision;
- A copy of any relevant Lasting Power of Attorney (LPA);
- Any relevant Court Orders;
- Care Plan (signed and dated);
- Best Interest Assessment;
- The application fee;
- Draft Order.
What happens next?
A dedicated team in the court office, "the DoL team" will deal with applications at all stages and this will be monitored by a Judge. As soon as is practicable, the court officers will consider the suitability and all suitable applications will be referred to a Judge for consideration without an oral hearing.
In the event that the Judge considers that the application is not suitable for the streamlined procedure, case management directions shall be given.
The applicant must provide all persons consulted with a copy of the Order made pursuant to the streamlined procedure.
An application for a review of the authorisation of deprivation of liberty must be made in accordance with the Order.
In what circumstances will there be an oral hearing?
In re X, Lord Justice Munby identified a number of "triggers" which will indicate which papers should be dealt at oral hearing including:
- Any contest, whether by the individual subject to the DoL ("P") or by anyone else, to any of the matters referred to in the application form;
- Any failure to take steps to notify P and all other relevant people in P's life who should be identified of the application and to canvass their wishes, feelings and views;
- Any concerns arising out of the information concerning P's and other relevant person's wishes, reasons of urgency, other specified factors that should be brought to the court's attention;
- Any objection by P;
- Any potential conflict with any relevant advance decision made by P or under a lasting power of attorney or by P's deputy; or
- If for any other reason the court thinks that an oral hearing is necessary or appropriate.
This decision will be made by the Court of Protection on the basis of the evidence before it.
How can we help?
The new streamlined procedure on the face of it paves the way for providers to make applications for deprivation of liberty authorisations with less need for lawyers. This seems right and proportionate. However, at least whilst the system beds in, we would recommend early consultation with us on the nature and quality of evidence required to make the process run as smoothly as possible and with the least prospect of the Judge requiring more evidence (which will cause delay) or calling for an oral hearing to fully understand the case.
For further information please contact Stuart Marchant, Partner or Emma Timmons, Solicitor.