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Process For Deprivation Of Liberty Applications Streamlined

Yogi Amin and Caroline Barrett of Irwin Mitchell’s Public Law & Human Rights team acted on behalf of two vulnerable clients in a case that has resulted in an important judgement setting out a streamlined process for deprivation of liberty (DoL) applications. 

The President of the Court of Protection, Sir James Munby, handed down a judgement on 7 August 2014 seeking to clarify the legal process relating to deprivation of liberty applications, after a previous ruling raised the prospect of a significant increase in the number of applications being filed at court.

Since the case widely known as ‘Cheshire West’ in the Supreme Court earlier this year, the number of people likely to be considered to be deprived of their liberty has increased significantly, and judges and practitioners have been concerned about a potential influx of applications to the Court of Protection as a result.

As well as acting for one of the parties in the original Cheshire West case before the Supreme Court, Irwin Mitchell also acted in two separate cases in the latest hearing on behalf of two vulnerable individuals, AC and GS. Both AC and GS needed the court to authorise their new care packages before they could be moved to a new placement, as they would be deprived of their liberty. Up until now, the specific process that would need to be followed in relation to such cases was unclear.

Caroline Barrett, a specialist solicitor at Irwin Mitchell who represented one of the clients involved in the hearing, said: “For people in a care home or hospital, the local authority can authorise a deprivation of liberty using a statutory authorisation process, and without going to court. However, for people in any other circumstances such as a supported living placement, an application to the Court of Protection is necessary.

“The purpose of the recent judgement was therefore to consider how the Court could streamline the process for dealing with these court applications going forward, on the basis that the numbers are likely to increase significantly.

Caroline Barrett added: “We welcome the court’s judgement in seeking to clarify and streamline the process which should be followed. Our clients’ litigation friends wanted to ensure that an efficient system was put in place to avoid undue delay and distress to the individuals concerned.

“However, they also recognise the importance of protecting vulnerable people who lack capacity, and in ensuring that safeguards are in place to ensure any deprivation of their liberty is lawful and in their best interests.

“For that reason we are concerned about the judge's suggestion that those being deprived of their liberty, or shortly to be deprived of their liberty, may not have to be joined as a party to Court proceedings. Without being a party, there is no access to independent legal representation. Further clarification and guidance on this point is required from the Court of Protection as soon as possible. We also await a further judgment from the court in due course, which is expected to explain these proposals in more detail.”

The President of the Family Division Sir James Munby convened a number of cases relating to deprivation of liberty to be heard together over a two day hearing on 5 and 6 June 2014, to consider procedural issues and whether changes to the court rules were required.

At the hearing the judge formulated 25 questions as to how the Court of Protection should handle deprivation of liberty applications. He has now handed down a preliminary judgement with further judgement to follow. The Court of Protection rules and practice directions will also need to be revised.

In this preliminary judgement he clarified that authorisation of DoL orders must be decided by a judge, but that cases could be decided on the papers alone without an oral hearing as long as they met certain criteria and were not being contested.

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