President of Court of Protection gives guidance on a new streamlined process for deprivation of liberty cases

08.08.14 | |

Sir James Munby, the President of the Court of Protection, today handed down his judgment in Re X and others (Deprivation of Liberty):

 

The purpose of the judgment is to deal with the pressing procedural and practical implications of the Supreme Court's decision in Surrey County Council v P and Cheshire West and Chester Council v P and another [2014] UKSC 19. Our summary of the Supreme Court decision can be found here:

 

In Re X Sir James Munby considered how the Court of Protection was to deal with the inevitable increase in deprivation of liberty cases that would result from the Supreme Court's decision. HIs objective was "to devise, if this is feasible, a standardised, and so far as possible "streamlined", process, compatible with all the requirements of Article 5, which will enable the Court of Protection to deal with DoLS cases in a timely but just and fair way" ([5]). The judgment handed down today is a preliminary judgment and further detail will be provided by the President in a later judgment. In summary, this judgment states:


 

1) DoL authorisations must be judicial and not administrative.

2) There are circumstances in which an authorisation for a DoL can be determined on the papers, but there must still be an unimpeded right to request a speedy review.

3) The 'triggers' for deciding whether an oral hearing is necessary include whether P is objecting to the DoL, whether there is any dispute around the care arrangements and whether there is any dispute around whether the patient lacks capacity to decide where to live.

4) Evidence in support of an application for a DoL authorisation must include professional medical opinion but should be "succinct and focussed" and the evidence and supporting material should not ordinarily exceed 50 pages.

5) There is no requirement that P be joined as a party to DoL proceedings, but "P should always be given the opportunity to be joined if they wish and whether joined as a party or not must be given the support necessary to express views about the application and to participate in the proceedings to the extent that they wish" [19]. If P is a party to the proceedings, s/he must have a litigation friend. If P is participating other than as a party, there is no need for a litigation friend. 

6) Review of a DoL must take place at least annually and must be judicial, although it may not require an oral hearing.

7) It is not permissible to make 'bulk' DoL applications. Each application must be individual so that it can be considered separately and on its own merits. 


 

The judgment also sets out the Practice Directions, procedures and court forms that need to be amended or reconsidered in order to facilitate a new streamlined process.


 

Stephen Cragg QC represented the Law Society and Martha Spurrier represented Mind.

 

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