What now for deprivations of liberty?
What will the effect of the postponement of the Liberty Protections Safeguards be on local authorities? Local Government Lawyer asked 50 adult social care lawyers for their views on the potential consequences.
SPOTLIGHT |
Following the Supreme Court decision in Cheshire West, the Courts are struggling to get to grips with the practicalities of the expected deluge of cases. Lord Justice Munby has started to map out the way forward. Ben Troke looks at what the CoP President has had to say.
The Supreme Court judgment in Cheshire West leaves little doubt that large numbers of people without the capacity to consent to the arrangements should now be recognised as being deprived of their liberty in the health and social care system, for the purposes of Article 5 of the European Convention on Human Rights, and so need to have procedural safeguards in place.
How many tens of thousands of deprivation of liberty cases will have to go to Court for authorisation (where it is not a care home / hospital placement, for instance, where the Deprivation of Liberty Safeguards – DOLS – can be used) is as yet unclear. But no one disputes that we will see a fundamental change in scale from the few hundred cases each year that the Court system has been dealing with to date.
In early June, Lord Justice Munby heard a consolidated directions hearing to consider how far we could go to streamline the Court process, while still being compatible with the P’s Article 5 rights. We now have an indication of his thinking in ‘a preliminary judgment’ published on 7 August 2014. Note that the focus is squarely on the Court process:
“I am not here concerned to analyse the Supreme Court’s decision, nor to explore its implications as a matter of substantive law. I am concerned solely with a narrower but more pressing issue: the practical and procedural implications for the Court of Protection of what all informed opinion agrees is the large increase in its case-load which will follow in consequence of the Supreme Court’s decision” (para 1)
“The immediate objective, in my judgment, is to devise, if this is feasible, a standardised, and so far as possible ‘streamlined’, process, compatible with all the requirements of Article 5, which will enable the Court of Protection to deal with all DoL cases in a timely but just and fair way.” (para 5)
Judgment
By reference to (some of) the 25 questions identified in the preparation for the directions hearing, which are appended to the judgment, the headlines are:
STOP PRESS! We have now been served with notice of application for leave to appeal against these last two points.
Comment
The key legal issue before LJ Munby at these hearings – whether the Court has jurisdiction to extend urgent authorisations where the local authority supervisory body has not (for resource reasons) been able to process the standard authorisation in good time – is not dealt with at all in this preliminary judgment. The temptation for managing authorities is to continue to await this before making a decision on taking such cases to Court, but this becomes increasingly uncomfortable as care homes and hospitals around the country increasingly find themselves in exactly this situation. Where a deprivation of liberty has been identified, and no lawful authorisation is in place, whether by DOLS or a Court Order, there will rightly be anxiety about the potential liabilities accruing for unlawful deprivation of liberty. The Court will surely not welcome huge numbers of additional applications in these circumstances, but judicial guidance is urgently required.
As to the issues LJ Munby does address, the desired cumulative effect is clearly to streamline the Court process as much as possible for cases outside care homes and hospitals for which an application to Court will be necessary. But some of the key decisions will necessarily severely limit the extent to which this can be achieved – for instance ruling out the use of Court officials to authorise a deprivation, or any form of ‘bulk applications’. The increase in demand on judicial resource, even with many of the cases being dealt with on the papers, will be enormous.
Even if the ‘irreducible minimum’ evidence can be distilled into a handful of pages, there is still a lot of ground for the applicant to cover, and this is likely to remain an inevitably time consuming and resource intensive process, the brunt of which will be borne by local authorities and NHS bodies, at a time of scarce and increasingly strained resources.
A large proportion of cases will still go to an oral hearing and, even with the cases which can be dealt with on the papers, it must be doubtful whether any streamlining of the Court forms / rules, in due course, can possibly bridge the gap between the few hundred cases a year the Court currently deals with and the tens of thousands, on any view, which are now likely to be required.
The revision of Court forms and practice directions is underway and we are pleased to be providing some input on early drafts, but this is not going to happen overnight, and in the meantime, of course, we will simply have to use the imperfect tools that we have today to deal with cases of ongoing unlawful deprivation of liberty, for which there is no alternative but to bring them to Court as soon as practically possible.
Practical pointers
A summary and guide to the responsibilities of CCGs is linked here and we will be updating this shortly, as well as producing specific guidance for acute and mental health trusts and local authorities. In the meantime:
Ben Troke is a lawyer at Browne Jacobson. He can be contacted on 0115 976 6263 or This email address is being protected from spambots. You need JavaScript enabled to view it..