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New guidelines on Deprivation of Liberty applications – what you need to know

The Court of Protection has developed guidelines which outline a streamlined process setting out how the Court will deal with Deprivation of Liberty (DOL) cases in a timely, just and fair way and in accordance with the Article 5 of the Human Rights Act.

What has happened?  
In Re X and Others (Deprivation of Liberty) [2014] EWCOP 25 (click here for further details) Sir James Munby states that following the decision in Cheshire West, the Court of Protection is anticipating a large increase in its caseload.

This is because the definition of who may be deprived of their liberty has widened following Cheshire West to include, for example, supported living placements which cannot be authorised under the current deprivation of liberty safeguards.

The guidelines set out the broad framework for a standardised process for making DOL applications which aims to address the increase in cases whilst ensuring compliance with Article 5.

A further judgment will address other issues and explain the decisions made and more detailed work will need to be carried out by the Court of Protection to produce or amend court forms, practice directions, produce standard form orders and other guidance.

What issues do the guidelines address?
Some of the issues that Sir James Munby ruled on in this judgment include:

  • The decision to deprive someone of their liberty can only be made by a judge and not a Court officer
  • Applications should be made for each individual even if there are a number of people in the same placement
  • There is no requirement under Article 5 or the Court of Protection Rules that the initial determination must involve an oral hearing.  There are some cases where an initial determination can be made on the papers so long as there is an unimpeded right to request a speedy review.  “Triggers” for when an oral hearing would be appropriate are set out in paragraph 13 of the judgment
  • Professional medical opinion is necessary to establish unsoundness of mind but where the facts are clear, there are cases where a GP’s evidence will suffice and need not involve expert psychiatric opinion
  • The patient is not required to be joined in to the proceedings but should be able to participate in the proceedings in such a way as to enable them to present their case properly and satisfactorily.  If the patient is a party, they must have a litigation friend
  • Where a DOL has been authorised, this should typically be reviewed by a judge at least annually although this does not need to be at an oral hearing in each case
  • The application form should address all the issues set out in paragraph 35 of the judgment

What happens next?
There is still a lot of work for the Court of Protection to do to effect this judgment and we will provide further newsflashes as soon as any further information is published.

In the meantime, if you have any questions on the issues raised by this update, please get in touch.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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