The new process for judicial deprivation of liberty applications
11th December, 2014
The new judicial procedure for authorising deprivations of liberty in settings outside of hospitals and care homes - for example in supported living accommodation or even in a person's own home - came into force on 17th November 2014. This is on a pilot basis and will be reviewed to see how it is working.
The procedure implements the judgment of Munby J in Re X and others which we told you about in a previous newsflash which you can find by clicking here.
What is the new procedure?
The new procedure is set out in part 2 of Practice Direction 10AA and only applies to settings outside of hospitals and care homes.
A model Order has also been produced which will be made if all the necessary criteria set out in the practice direction are satisfied. The Order will provide authority for a person to be deprived of their liberty.
The Order is made on the basis of papers submitted as part of the application if all of the necessary criteria are satisfied. It is therefore of utmost importance that the information provided with the application is full and frank and complies with the provisions of the practice direction to ensure that the Court is aware of all issues which may impact on its decision.
Both documents can be found by clicking here.
What information is needed?
The application is made on form COP DOL 10 which sets out the information which needs to be provided as part of the application. This is as follows:
- The care plan is central to the application and should set out fully the arrangements which have been made for the care of the person which will involve a deprivation of their liberty. The Court will consider the care plan to determine whether it is in a person’s best interests to be cared for in accordance with the same and that it is the least restrictive option available for that person. If the care plan changes in a material way during the period of the authorisation then the matter must be brought back before the Court.
- Form COP3 or other evidence that the person lacks capacity
- A mental health assessment diagnosing the person as being of unsound mind. This has to be done by a registered medical practitioner
- The factual circumstances around the deprivation of liberty
- A statement of best interests and a best interests assessment
A separate application must be made for each person (fees are payable for each application) but where the facts are identical for a number of individuals, a generic statement may deal with the arrangements which are common to those individuals.
The subject of the application must be consulted about it and annex C to the form sets out what is required by way of consultation.
How we can help
Ward Hadaway has extensive experience of advising on both standard DOLS applications and those which require an application to the Court.
Since the decision in Cheshire West, NHS Trusts will have increased numbers of applications to make and we can assist you with these applications and review them to ensure they meet the requirements of the streamlined process.
If you would like any further information 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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