Court of Protection may only authorise package of care depriving individual of liberty if satisfied medical evidence confirms person has unsoundness of mind, judge rules

A Court of Protection judge has directed Stockport Metropolitan Borough Council to commission and instruct a registered medical doctor, either a psychiatrist or a registered GP, to review a woman’s case and provide a report dealing with her diagnosis, in order for the court to authorise a package of care which deprives her of her liberty.

In Stockport Metropolitan Borough Council v KB & Ors [2023] EWCOP 58, His Honour Judge Burrows said that in many ways KB's case was “an archetypal Re-X case for which the COPDOL11 procedure was invented”.

The Re X streamlined procedure was introduced in the aftermath of the Supreme Court’s 2014 ruling in Cheshire West to deal with the sharp rise in cases coming before the Court of Protection to authorise packages of care that fell outside the statutory regime. It is commenced by the issuing of an application using COPDOL11, a form containing the information necessary for the Court to decide whether to authorise P's deprivation of liberty.

KB is a middle-aged woman with what is said to be a “lifelong learning disability” that deprives her of her capacity to make decisions about her residence and care.

HHJ Burrows said: “No one has any doubts that she lacks capacity, and that her arrangements are in her best interests. However, actual evidence of her mental disorder appears not to be available. Certainly, no profession medical evidence was placed before me.”

The judge said that there were two closely related issues that had practically prevented the Re-X route being taken in this case.

“The first is whether, in order to satisfy the requirement under Article 5§1(e), namely that P suffers from "unsoundness of mind", the evidence upon which that conclusion is based has to say so in those terms? Secondly, whether the Court, either in its guise as a judge considering a COPDOL11 application on the papers, or via an application under the COP1 procedure, has to be in possession of evidence from a medical doctor?”

He added that although he had treated this case as a COP1 brought before him and he had in no way sought to provide more general guidance, what he concluded might be of wider application.

The judge revealed that although he was not concerned in this case with a COPDOL11 application, the reason KB’s case came before him as a COP1 application was because a number of applications made by Stockport Council had not been accepted because of the requirements of this form seemingly not having been met.

According to a statement provided by a social worker in the case, the council commissions services for around 800 individuals with either a learning disability or autism.

Many of those people lack the capacity to consent to their arrangements. Very few have ongoing contact with a consultant psychiatrist. The only contact they will generally have with a registered medical practitioner will be their GP, she noted.

In these circumstances, Stockport formulated a letter asking the relevant person's GP to certify (or not) that P was "of unsound mind".

However, there was concern from GPs about the wording to be used in their letter in response. The term "of unsound mind" is not one contemporary GPs are happy to use as a diagnostic label, the judge noted.

The council therefore changed the wording in their letter from "unsound mind" to "mental impairment".

His Honour Judge Burrows said: “However, in [Stockport’s] first position statement I was told that in three cases issued under COPDOL11, using that language, the Court rejected the applications.”

For that reason, when the present application was brought, the council submitted no medical evidence of unsound mind at all.

The order sought was to clarify "the requirements for the court to make a declaration that [KB] lacks capacity to decide on care and accommodation in circumstances where neither [KB] nor anyone concerned with her welfare object[s] to the care arrangements…".

The Court was also asked to authorise KB's deprivation of liberty.

HHJ Berkley made the first order on 21 July 2023 which contained interim declarations as to KB's incapacity to litigate, make decisions about care and residence and to sign a tenancy agreement. The matter was then referred to Judge Burrows.

Discussing the case, he noted that in the context of applications to authorise a package of care, which inevitably results in someone being deprived of his or her liberty, the Court must be satisfied that the person suffers from “unsoundness of mind”.

However, he added: “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. It is for the court to be satisfied that P is of unsound mind on the basis of the evidence before it. Provided that evidence satisfies the Court that P has a mental disorder, and subject of course to the other essential requirements also being satisfied, the Court may authorise detention.”

The judge found that the council had issued proceedings without a “vital component” for their case.

He said: “Pragmatically and quite rightly, the Court made interim declarations on the evidence before it. The matter was then listed for a decision as to what evidence was needed. It would have been disproportionate and frankly absurd if the Court had dismissed the Applicant's application for want of evidence. However, in future it is for the Applicant to ensure that there is evidence of unsoundness of mind as well as incapacity before commencing proceedings.”

HHJ Burrows also concluded: “The European Court of Human Rights jurisprudence is clear that ‘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. Whether, in appropriate circumstances that evidence could come from a psychologist, mental health nurse, or other similar specialist clinical expert may be a moot point. It is one I do not have to decide in this case.”

The judge directed the council to commission and instruct a registered medical doctor, either a psychiatrist or a GP, to review KB's case and “provide a report dealing with her diagnosis as well as whether that condition causes her to lack capacity to make relevant decisions, as well as the likely duration of that condition”.

Lottie Winson