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Legal experts reveal concerns regarding proposals for a proposed ‘streamlined procedure’

Date:10 DEC 2014
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Lawyers representing two vulnerable adults in a case which will have major consequences for all of those affected by Deprivation of Liberty (DoL) applications have been given permission to appeal to the Court of Appeal concerning proposals recommended by the President of the Court of Protection for a new ‘streamlined procedure’.

Irwin Mitchell’s specialist public law team represent two young disabled adults AC and GS, who needed the Court of Protection to authorise their care packages before they moved to new placement as it would involve them being deprived of their liberty.

In a case that came to be known as ‘Re X’, the President of the Court of Protection convened numerous cases to be heard altogether on 5-6 June this year, to consider the procedural implications of the case of Cheshire West.

The ruling in Cheshire West meant that thousands of vulnerable people would be considered to be deprived of their liberty when being cared for by the state, and as such authorisation would be required in order to safeguard those individuals’ human rights.

Where the incapacitated person is not in a care home or hospital, court authorisation will be required. The President of the Court of Protection wanted to consider the best way for the court to streamline the applications, given the high numbers of anticipated applications.

The judgments in Re X were handed down in August and November 2014, with a further judgment to follow. Irwin Mitchell has issued an appeal against specific proposals which would mean those disabled individuals affected by the decision are not involved in court proceedings. Specifically, the President ruled that in some circumstances, an incapacitated person would not need to be made a party to the proceedings before the court. AC and GS’s litigation friends consider this to be a breach of their rights. The Court of Appeal has now granted permission for the case to proceed to an appeal hearing, agreeing that this is an important issue which requires consideration at a high level.

Caroline Barrett, a lawyer in Irwin Mitchell’s Public Law team was also acting for the family in the Cheshire West ruling. She said:

'This case revolves around the need to ensure that applications to authorise an individual’s deprivation of liberty are dealt with efficiently given the inevitable strain on resources, but that individuals’ rights are still safeguarded.

Deprivation of liberty applications all concern vulnerable and incapacitated people. There is a real need to ensure that applications to limit a person’s freedom are given the correct amount of judicial attention, and that individuals have access to the court in order to put forward their views, have access to legal representation, and to object to their deprivation of liberty if necessary.

The Supreme Court determined in Cheshire West that we should ‘err on the side of caution’ in approaching deprivation of liberty cases, and that it was important to protect and safeguard some of the most vulnerable people in society. Whilst our clients agree with many of the President’s proposals to streamline the process for authorising deprivation of liberty in cases where there is general agreement on the way forward, they do not agree that the individual themselves can be excluded from the process.

We are pleased that we now have permission to appeal the judgment, and look forward to the appeal being heard. The Court of Appeal has expedited the listing of the appeal, and so we anticipate having a determination from the court by the end of February 2015.'