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Deprivation of liberty in the community – where are we now?

Anna Moore discusses recent Court of Protection judgments on deprivation of liberty

Posted on 21 March 2016

For those of us who represent individuals in the Court of Protection the recent judgment of Mr Justice Charles in JM and Others [2016] EWCOP 15 was of considerable interest. It is the latest in a series of judgments that have sought to clarify how deprivations of liberty should be dealt with post Cheshire West. Cheshire West was an important judgment in 2014 which clarified the circumstances when individuals may be deprived of their liberty. It set out an ‘acid test’  for a deprivation of liberty, which is whether a person is under continuous supervision and control and not free to leave. It also determined that factors such as compliance or the purpose of a placement are irrelevant when considering deprivation of liberty. 

Cheshire West has undoubtedly increased the pressure on the already tight resources of Local Authorities.  Since this judgment the Court has been inundated with applications seeking to authorise a deprivation of liberty-  a survey records that the Court received  approximately 30,000 applications in 2014/15 – 2015/16. The practicalities of how this significant increase in applications to the court should be dealt with have been the subject of various cases – most recently JM-  each developing the position.

The 5 applicants in this case all received care packages in the community that amounted to a deprivation of liberty. As they were not receiving care in a hospital or care home, they fell outside the statutory Deprivation of Liberty Safeguards (DOLS) scheme.

The previous case of Re X has considered implementing a ‘streamlined’ procedure for authorising deprivations of liberty which envisaged that ‘P’ (the subject of proceedings), would not always be a party to proceedings, however Charles J found that this would not satisfy Article 5 of the European Convention on Human Rights, which is the right to personal liberty and security.

In his judgment Charles J emphasised, the importance of P being independently represented but confirmed that there was a real problem of ‘practical availability’ of resources.

Charles J concluded that the responsibility to provide some form of system that would comply with Article 5 fell at the feet of Central Government who could not seek to pass this burden on to Local Government.

Charles J left Central Government with suggestions of various different solutions to attempt to resolve this problem, which included entering into contracts with advocacy providers, providing additional resources to the Official Solicitor, making changes to Legal Aid or taking this matter to the Supreme Court and asking it to re-examine its decision in Cheshire West.

Thoughts on the judgment

This judgment highlights the practical difficulties the court is working through in this time of flux. I am often contacted by people who have friends or relatives who are deprived of their liberty and who find navigating through the various assessments and authorisations difficult and confusing. Unfortunately, all too often I see Local Authorities carrying out assessments without the input of family members or without appointing an advocate, which is in breach of the provisions of the Mental Capacity Act 2005. This judgment further confirms that the person being deprived of their liberty must be at the centre of the process.

If you are concerned that a family member may be deprived of his or her liberty in hospital, a residential care setting or at home, it may be that you can seek to become a representative to represent his or her interests in the Court of Protection. Furthermore, if you are unhappy with what the authority is proposing  you should seek advice on the options available to you, including asking the Court to look at the case.

Anna Moore is a solicitor in the Human Rights Team at Leigh Day. Anna acts for individuals in matters across the health and community care sector and has experience in dealing with cases involving mental health, mental capacity, community care and public law. Anna has a particular interest in acting for vulnerable individuals in proceedings in front of the Court of Protection relating to decisions about residence and contact. Anna has acted in a number of matters involving deprivations of liberty.