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Kara Swift
Kara Swift
Associate
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Court authorised Deprivations of Liberty (DoL) in a post-Cheshire West world

Date:11 AUG 2014
Third slide
Jess Flanagan
Associate Solicitor
A change of landscape and the need for a new process

On 7 August 2014, Sir James Munby, President of the Court of Protection handed down his judgment in respect of the practical and procedural implications following the Supreme Court judgment in  Surrey County Council v P and others (Equality and Human Rights Commission and others intervening), Cheshire West and Chester Council v P and another (Same intervening) [2014] UKSC 19, [2014] COPLR 313.

In his introduction to  Re X and Others (Deprivation of Liberty) [2014] EWCOP 25  he is unequivocal that he is dealing only with the practical aspects arising from the judgment and not offering any legal analysis of the Supreme Court’s decision, which turned on its head his definition of what constitutes a deprivation of liberty set out in his leading judgment in the Court of Appeal in the same case.

Lady Hale gave leading judgment in the Supreme Court and provided us with an ‘acid test’ (much like that set out in the HL v UK judgment in 2004 from the European court of Human Rights) and expressed that individuals with intellectual disabilities had as much right not to be deprived of their liberty as those who didn’t: 'The whole point about human rights is their universal character. The rights set out in the European Convention are to be guaranteed to "everyone" (article 1).'  (para [36] of her judgment)

The ‘relevant comparator’ test previously set out by the President when he was a judge of the Court of Appeal was therefore politely rejected by Lady Hale as being inconsistent with her view that persons with disabilities have the same rights as everyone else, in favour of determining whether an adult was under ‘continuous control and supervision and not free to leave.’ By way of context it is important to remember that the judge dealing with simplifying procedure as a result of the widening of the test, is the judge about whom Lady Hale said (at para [48] of her judgment):

'I entirely sympathise with the desire of Munby LJ to produce such a test and thus to avoid the minute examination of the living arrangements of each mentally incapacitated person for whom the state makes arrangements which might otherwise be required.'
Much like Sir James, I will not be providing a legal analysis of the test, but instead will focus on the implications of this new process for ‘P’, the person who might lack capacity to consent to care arrangements and finds themselves deprived of their liberty in an environment other than a hospital or care home (where the statutory Deprivation of Liberty Safeguards will provide protection). We all know there will be significant costs for authorities, and I will touch on that, but the right not to be deprived of one’s liberty by the state is about the individual, and it is on the individual that I will focus.

If Lady Hale’s test is fulfilled, then, however good the placement, however happy or obliging P is with the arrangements, (and here we remember her now famous quote ‘a gilded cage is still a cage’) that placement must be authorised. In placements other than care homes or hospitals, an application must be made to the court for such authorisation to be given to ensure that it is compliant with Art 5 of the European Convention on Human Rights – the right to freedom from deprivation of liberty.

Sir James has had to deal with this because of the inevitable rise in applications that the court will now have to deal with, coupled with local authorities who are crying out for guidance. My assumption had always been that the President would probably try to separate cases in such a way that many of the ‘gilded cage’ type scenarios could be dealt with on the papers to avoid the need for unnecessary and costly oral hearings where P was content, but that there would be some mechanism whereby those more complex and potentially contentious matters could be spotted and brought to hearing.

The President considers that it is indeed a feasible and achievable objective 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’.  

A ‘streamlined’ process

Sir James's judgment gives some guidance as to how that should work in practice, which rules might need amending to give that effect and how P should be protected. It is relatively scant on detail and instead sets out the practical steps required to get an application seeking authorisation of a deprivation of liberty off the ground.

The President says the steps required to achieve that are a ‘streamlined’ process and his judgment is a brief response to most of the 25 questions posed by a ‘who’s who’ list of Court of Protection barristers and solicitors following a 3-day hearing in the summer.

Those steps have been helpfully summarised for applicant authorities by 39 Essex Street in its ‘Judicial deprivation of liberty authorisations guide.’ The President’s main priority was to ensure that he produced a workable process that was compliant with Art 5 and 6 of the European Convention on Human Rights (para [28]).

The answers to three of the questions posed are, in Sir James's judgment, the core requirements to enable a ‘streamlined’ Art 5 ECHR-compliant process. By focusing on his responses to two of these questions, we can start to see how the system will work. Like any new process in the Court of Protection, it will take some time to settle and best practice will emerge.

Because I frequently act for P, perhaps the most important part of this is that P’s voice will be heard; whether that is ‘yes thank you I am fine, I don’t need a court sticking its nose in to my affairs,’ or ‘no, I am not fine and I would like this to be looked at in more detail.’

The judgment goes some way to ensure that P is involved and Sir James sets out some eagerly awaited guidance on how P is to participate in all of this.

I will deal with these questions in turn, as in my view they reflect that this process at least tries to address Lady Hale’s judgment that, ‘it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else.’  They do so by holding P, at least on paper, relatively central to the entire process.

QUESTION 3: If an initial application can in principle be determined on the papers, how is the Court of Protection to identify which cases should be dealt with on the papers and which at an oral hearing?

Sir James has already confirmed that the initial application can be dealt with on the papers, but that it must (as with all subsequent reviews) be dealt with by a judge to ensure compliance with Art 5(1).

For this streamline process to work, the court must receive sufficient information from the applicant so that it can determine which cases to ‘authorise’ and which need further investigation, with a chance for all involved to have their say.

I fear that some of the cases that require greater scrutiny might be missed and risks a failure to uphold Art 6 (right to a fair trial) rights. In theory, if the process is applied properly, and if the evidence in support of each application follows the guidance appropriately, this failure shouldn’t happen.

The triggers which will result in the court directing that there should be a hearing are as follows (para [13]):

'i) Any contest, whether by P or by anyone else, to any of the matters referred to in paragraphs 35(ii)-(vii) below. (These are proof of age, evidence re ‘unsound mind’, nature of care arrangements, evidence of lack of capacity and best interests and how the arrangements are imputable to the state.)

ii) Any failure to comply with any of the requirements set out in paragraph 35 (viii) below.

iii) Any concerns arising out of information supplied in accordance with paragraphs 35(ix), (xiii) and (xiv) below.

iv) Any objection by P.'

Important here are any objections by P, or on Ps behalf by a family member or representative to the arrangements, or to the evidence relied upon to consider that there is a DoL capable of lawful authorisation.

Paragraph 35 lists the evidence for each individual that needs to be provided to the court in ‘front-loaded’ applications. It appears to me to ensure compliance with Art 5, Winterwerp v Netherlands (1979) 2 EHRR 387 requirements and s 4 of the MCA 2005, the evidence must specifically include evidence in respect of ‘unsound mind’, capacity, the nature of the arrangements and why they are considered to be in P’s best interests and importantly the steps that have been taken to notify P and all other relevant people in P’s life, what has been done to canvass their wishes, feelings and views; and any relevant wishes and feelings expressed by P and any relevant person.

I frequently come across applications made pursuant to s 16, or s 21A (challenges to Urgent and Standard Authorisations) where those matters referred to above are not always set out in a particularly useful or helpful way and sometimes they are non existent. Sadly, P’s family, if deemed to be troublemakers by the authority, can often be marginalised and their views will not be properly represented. This can happen with P too, mostly with the best of intentions, but perhaps from a slightly paternalistic starting point which doesn’t sit too well with an individual who may lack capacity to make decisions about their care themselves, but is well aware of their surroundings and circumstances.

So, although these triggers look good, they will only work properly if the evidence filed by the local authority is as clear as it should be. As each authority will have potentially thousands of applications to make, I am concerned that these issues and any objection by P might not be picked up in an initial application and a matter that really does require deeper investigation and a court hearing, might simply get rubber stamped and put straight in the ‘authorised’ pile. P will need to be notified, but how can we be sure that P will have the facility to challenge any application once issued?
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Happily though, there are two further triggers that might catch the applications that require more than a decision on the papers:

'v) Any potential conflict with any decision of the kind referred to in paragraph 35(x) below. (Advance decisions, or relevant decisions under LPAs and P’s deputy.)'

I wonder if this might encourage more people to think about making health and welfare LPAs? Working within a team of private client lawyers I know that people are frequently uncomfortable with giving the power to make welfare decisions on their behalf to another person, but if applications like this are going to become common place, might it be wise to strengthen the advice given in this regard?

'vi) If for any other reason the court thinks that an oral hearing is necessary or appropriate.'

The parties may have a particular idea of how the application should be dealt with. This idea might not be shared by the judge reviewing the papers as he or she may pick up on an issue that requires resolution. I support this, following my comments above, on the basis that a local authority applicant may indeed miss putting something fundamental in their application due to the sheer pressure of the task upon them to comply.

Another requirement that makes me feel slightly better about the court being in a position to pick up on any objection by P is that the evidence presented to the court when making the application must include:

'xiv) Any factors that ought to be brought specifically to the court's attention (the applicant being under a specific duty to make full and frank disclosure to the court of all facts and matters that might impact upon the court's decision), being factors:
a) needing particular judicial scrutiny; or
b) suggesting that the arrangements may not in fact be in P's best interests or be the least restrictive option; or
c) otherwise indicating that the order sought should not be made.'

Again, this relies on the applicant authority being open and detailed enough in their evidence to the court, but it is the reminder that they are ‘under a duty to make full and frank disclosure to the court of all facts and matters that might impact on the court’s decision’ that makes me feel slightly better that should P not be happy with his or her arrangements, the judge will get to know about it. Furthermore, it does appear from para [25] that a hearing could be listed at any time, notwithstanding an application was initially brought on a paper basis.

QUESTION 4: What are the irreducible matters that must be addressed in evidence before the court before it can make an order satisfying the requirements of Article 5(1)(e) ECHR?

Put simply, what evidence is required to ensure that individual deprived of their liberty is so detained due to being ‘of unsound mind’?

The President states that this should be compliant with the three Winterwerp requirements and sets this out clearly at para [14] of his judgment, reproduced here for ease:

'Compliance with the three Winterwerp [Winterwerp v Netherlands (1979) 2 EHRR 387] requirements is essential to ensure compliance with Article 5: (i) medical evidence establishing unsoundness of mind, (ii) of a kind warranting the proposed measures and (iii) persisting at the time when the decision is taken.'
I don’t think that this will come as a big surprise, nor will it be a particular sticking point for applicant authorities and their advisers. What might be slightly disconcerting for P and P’s family (and their advisers) is that evidence of an ‘unsound mind’ can in some cases (and what cases will those be?) be provided by a GP. While some GP evidence is better than that of some psychiatrist evidence, when we are talking about an individual’s liberty and making decisions on their behalf, I do wonder whether a little more time and expertise in working with capacity assessments might be justified?

Evidence of capacity provided by applicants in support of applications must get better. I am frequently seeing evidence that is woefully inadequate, and in some cases, non existent. Applicants must remember that there is a presumption of capacity and that to establish incapacity, that presumption must be rebutted by clear evidence.

QUESTIONS 7 & 8: 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 Art 5(1) ECHR or Art 6 or both? If so, should there be a requirement that P… must have a litigation friend?

Sir James concludes his response to these questions by saying that the rules around P being joined as a party as opposed to being merely involved in the process and the appointments of litigation friends, need to be reviewed urgently by the court. I think the same is true of standard applications, because in situations where capacity is an issue, and the rule states that P must have a litigation friend, what if P is able to give the instructions that are required to conduct litigation to ‘prove’ his or her capacity? There are ways around this, but I think some clarity would be helpful.

Sir James says at para [20]: ‘If P is a party to the proceedings, P must have a litigation friend. If P is participating other than as a party, there is no need for a litigation friend.’
This is supported by an expression that P need not always be joined as a party, but should be given the opportunity to if he or she wishes (para [19]). This is slightly different to the practice that has developed in welfare proceedings where P is more frequently than not joined as a party and the Official Solicitor is invited to act as litigation friend within the first directions order. I wonder whether we will see a slightly different form of initial directions order in these types of cases?

In cases where the applicant authority, for whatever reason, has been unable to properly record P’s wishes; how will we know if P will want to be a party and if they lack litigation capacity, who is going to act as litigation friend?

QUESTION 16: 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 …?

Given the resistance/refusal of the Government to apply non means tested funding arrangements to legal aid for cases falling within this process, this question is important, but the reality may not be so simple.

In the South West, solicitors in private practice and advocates are to engage in a dialogue with the local Authorities to establish whether IMCAs and advocates can act as a litigation friend, and how that might be funded. The President has suggested that they can act as litigation friend without engaging a solicitor, but from our discussions I am quite sure that an advocacy service would not wish to take on the risk of acting as a litigation friend without the benefit of legal advice. So does this properly protect P as intended?

The alternative is that P, if not joined as a party, should be given the support necessary to express views about the application. Again, I would ask who is going to do that? In cases where health and social care professionals do not have a good relationship with P, is P going to trust them to put their views across for him? IMCAs could certainly help – but where is this extra funding for the already over-stretched advocacy organisations going to come from?

Conclusion

I have raised many questions that as yet, I am not sure can be answered without seeing how the various bodies and organisations respond on the ground when the applications get going. The advice is to start making applications, notwithstanding that the new forms have not come into existence and some of the finer details are yet to be ironed out.

Sir James may be dealing with the inevitable floodgates, but he must also balance this against the costs involved. His process dismisses the suggestion that bulk applications can be made, saying they would be unlawful as the information must be specific to P, which echoes Lady Hale’s concerns that an individual who might lack capacity to make decisions about their care arrangements should be treated the in the same way as those who have capacity, by affirming that they must be treated as an individual. The result is a further increase in cost to the local authority applicants significantly. If the court application fee remains the same then for each individual application there is a cost of £400 (and a further £500 if a hearing is required), as well as the cost of the assessments, compiling the applications, any legal representation required by the authorities, and for P, their families and to the Legal Aid Agency should P be eligible for funding.

I read on the BBC website recently that Caroline Abrahams, of Age UK, said on the Care Act 2014 that a 'great new system on paper is pointless unless there is sufficient funding in place'. The same rings true here. We are talking about vulnerable people and the respect for fundamental human rights; surely a price shouldn’t be put on that?

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