In the recent judgment, Re X and others (Deprivation of Liberty)  EWCOP 25, the president of the Court of Protection Sir James Munby, set out a broad framework for handling deprivation of liberty cases compliant with the European Convention on Human Rights.
Munby claimed that a new system would help the court deal with the ‘significant increase’ in cases which are expected following the Cheshire West Supreme Court ruling. Munby said that although it was not yet clear how many more deprivation of liberty cases there would be, a standardised ‘streamlined’ process was needed to deal with them. He also said that he wanted a system where some cases could be decided “without an oral hearing”.
Speaking about the judgment, Roger Hargreaves the DoLS lead at the Mental Health Alliance, said: “This is only a preliminary judgement, without reasoning or any reference to the submissions made by the 22 lawyers who appeared at the hearing, nor does it deal with the issue of urgent applications for Deprivation of liberty safeguards which local authorities can’t process within the time limits. Whether or not they comply with the minimum requirements of Article 5 or other ECHR Articles, the relevant question is whether these “streamlined” procedures will in practice deliver for people in supported living at least the same level of safeguards as are available to people in care homes or hospitals who are eligible for DoLS. The clear answer to that is no, for four reasons.”
The four reasons set out by Roger Hargreaves were as follows: “First of all, there is no equivalent of the relevant person’s representative or right to the support of an IMCA, and therefore no-one to protect the interests of someone who is not themself able to clearly express an objection or a wish to challenge the application. Whether or not such a wish becomes known to the judge will therefore depend entirely on the diligence and good faith of the local authority making the application. Secondly, there may be a very low level of medical input. It appears that all the medical evidence, including evidence of incapacity, could come from the GP, where the DoLS procedure requires the medical assessor to have psychiatric experience and additional training”.
Mr Hargreaves’ third reason was, “…there is no provision for an independent best-interests assessment from a qualified assessor, which is the crucial safeguard in DoLS. If they aren’t represented, the only view of the person’s best interests which the judge will hear will be that of the local authority.”
He said: “Fourthly, it is likely that most cases will be reviewed no more than annually. At least until the Cheshire West judgement, it was common practice for BIAs to make very short authorisations in order to ensure an early review and to apply pressure for changes in care arrangements to be made, and this has been one of the most valuable aspects of DoLS. The effect of this will be that in those cases dealt with on paper only with the person unrepresented, which are likely to be the vast majority, all the evidence before the judge will be from the local authority, and unless that authority is very scrupulous in determining and reporting the person’s own views and wishes and those of their family, or in identifying potential flaws in its own argument and possible alternative course of action, even an experienced judge would be unable to do more than rubber stamp its application.”