Oliver Lewis successfully appeals in the Court of Protection

Mr Justice Hayden, Vice President of the Court of Protection, has clarified that Court of Protection judges should not summarily dismiss cases where people’s liberty is at stake: CB v Medway Council & Anor (Appeal) [2019] EWCOP 5 (6 March 2019).

Mrs CB is a 91-year-old lady who has lived in a care home since September 2017. She is deprived of her liberty and lacks the capacity to decide where to live. Objecting to being in the care home, an application was made on her behalf to the Court of Protection. The local authority agreed to gather information about the feasibility and costs of a live-in carer. At a directions hearing in November 2018 a judge summarily dismissed CB’s application without any evidence having been filed by the local authority or by Mrs CB’s nephew and on the basis of neither party inviting the court to do so.

Reviewing the law on summary dismissals, Hayden J said, “what is involved here is nothing less than CB’s liberty. Curtailing, restricting or depriving any adult of such a fundamental freedom will always require cogent evidence and proper enquiry. I cannot envisage any circumstances where it would be right to determine such issues on the basis of speculation and general experience in other cases.”

Oliver represented Mrs CB in the appeal. He was instructed by Kate Churchouse of Bison Solicitors, the firm retained on CB’s behalf by the Official Solicitor.