Senior judge issues second ruling on deprivation of liberty and due process

The President of the Court of Protection has handed down a second ruling on due process in deprivation of liberty cases.

In a preliminary ruling issued in August, Sir James Munby answered 25 questions considered at a hearing on 5 June.

These questions had been identified as requiring answering if the objective of standardising the approach to deprivation of liberty cases in the aftermath of the Supreme Court ruling in Cheshire West was to be carried forward.

The Cheshire West judgment has led to a surge in the courts' caseload and Sir James has been seeking to set out a streamlined process that is compatible with the requirements of Article 5 (the right to liberty and security of person).

The President has now issued a further ruling that addresses three questions not fully covered in his first judgment.

The questions covered in X & Ors (Deprivation of Liberty) (Number 2), Re [2014] EWCOP 37 are:

• “Does P need to be joined to any application to the court seeking authorisation of a deprivation of liberty in order to meet the requirements of Article 5(1) ECHR or Article 6 or both? (Question 7 of his original list)
• If so, should there be a requirement that P … must have a litigation friend (whether by reference to the requirements of Article 5 ECHR and/or by reference to the requirements of Article 6 ECHR)? (Question 9)
• If P or the detained resident requires a litigation friend, then: (a) Can a litigation friend who does not otherwise have the right to conduct litigation or provide advocacy services provide those services, in other words without instructing legal representatives, by virtue of their acting as litigation friend and without being authorised by the court under the Legal Services Act 2007 to do either or both …?" (Question 16)

To read Sir James’ ruling and how he addresses these points, click here.

Last month it emerged that an application had been made to the Court of Appeal for leave to appeal two key parts of the President’s first ruling.

See also: Deprivation of liberty and due process by Ben Troke.