New guidelines on how deprivation of liberty (DOL) applications should be handled in the wake of a recent Supreme Court judgment, have been outlined by the Court of Protection.
In Re X and Others (Deprivation of Liberty) [2014] EWCOP 25, Sir James Munby, President of the Family Division, said he was attempting to devise a feasible, standardised, and so far as possible “streamlined”, process, compatible with all the requirements of Art 5 of the European Convention on Human Rights, which will enable the Court of Protection to deal with all DOL cases in a timely, but just and fair way.
Sir James emphasised that his decision was not an analysis of the Supreme Court’s decision in Surrey County Council v P and Cheshire West and Chester Council v P and another, but was instead focused on the “very significant increase in the number of cases in the Court of Protection relating to deprivation of liberty” which will inevitably follow the Supreme Court ruling.
He said: “The process needs, if this is feasible, to distinguish between those DOL cases that can properly be dealt with on the papers, and without an oral hearing, and those that require an oral hearing.”
The judgment sets out a number of matters which need to be addressed during a DOL application, as well as the Practice Directions, procedures and court forms that need to be amended or reconsidered to facilitate the new streamlined process. Further detail will be provided by the President in a later judgment.
In Cheshire West, the Supreme Court concluded that the living arrangements made for an incapacitated person did amount to a deprivation of liberty. A person of “unsound mind”, the court ruled, has the right not to “be deprived of his liberty save in accordance with a procedure prescribed by law” under Art 5 of the Convention. Lady Hale said that even if an incapacitated person’s living arrangements were comfortable and made their lives as enjoyable as possible, this makes no difference as “a gilded cage is still a cage”.
The decision introduced a new requirement for routine scrutiny of care arrangements by local authorities and critics claim the welcome move towards an informal, social policy-driven approach in such cases, has now reverted to a formal and legalistic one.
Jon Holbrook, a barrister at Cornerstone Barristers says: “By likening care homes and other benevolent living arrangements to ‘gilded cages’, courts in Strasbourg and London have thrown, with Parliament’s encouragement, a labyrinth of regulation over living arrangements for the incapacitated. Sadly, this undermines the professionalism of carers and sucks resources away from those needing care.
“Despite the Court of Protection’s best efforts to minimise the bureaucracy involved, any form of routine judicial oversight of a caring relationship will harm that relationship. The best interests of the incapacitated would be served by Parliament liberating social policy from the straitjacket imposed on it by human rights laws."
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