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In a landmark judgment in 2014, the Supreme Court confirmed in the Cheshire West case (PDF here) that a ‘deprivation of liberty’ (DoL) for the purposes of Article 5 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) occurs whenever a person who lacks the capacity to consent to the arrangements made for their care and treatment:

• Is under continuous supervision and control, and
• Is not ‘free to leave’ (‘the acid test’).

Sometimes it is necessary in the best interests of a person (P) to provide care in circumstances that also deprive P of his liberty. If P is in a care home or hospital, the deprivation of liberty safeguards (DOLS) must be used. If P is living in their own home, a supported living arrangement or extra care or shared lives scheme (domestic settings) an application to the Court of Protection for specific authorisation for a DoL will be necessary under s 16(2)(a) of the Mental Capacity Act 2005.

Local authorities, clinical commissioning groups and care providers struggled to formulate their response to the Cheshire West judgment. To avoid any unlawful DoL for a particular resident or service user, providers were advised, if in doubt, to err on the side of caution and to take steps to seek formal authorisation. It was anticipated that local authorities would need substantial additional resources as they were swamped by requests for assessments or authorisations in respect of the thousands of individuals being cared for in circumstances that deprived them of their liberty, according to the acid test.

There was concern that the Court of Protection would be stretched to breaking point with the anticipated subsequent increase in court applications.

The chronicles of Re X 
Following on from Cheshire West, in August 2014, in Re X No 1 (Re X and others (Deprivation of Liberty) [2014] EWCOP 25), the President of the Court of Protection Sir James Munby devised a streamlined process to enable the court to deal with DoL cases in a timely and efficient way, yet that remained compatible with the ECHR.

In his second judgment in Re X No 2 (Re X and others (Deprivation of Liberty) [2014] EWCOP 37), in October 2014, the President considered the critical issue of whether P needed to be joined as a party to the application seeking authority to deprive him of his liberty.

Was it possible to meet the exacting requirements of Articles 5(1) and 6 ECHR without P being made a party? The President acknowledged any that any interference with P’s right to liberty must be subject to strict scrutiny. EHCR case law requires that to satisfy Article 6, P must be supported to present his case ‘properly and satisfactorily’. Article 5 rights require that P have access to a Court and an opportunity to be heard, either in person or otherwise.

However, the President made a comparison with wardship proceedings, and determined that just as a child ‘ward’ does not have to be joined as a party in wardship proceedings, so neither does the adult ‘P’ need to be joined as a party in proceedings before the Court of Protection.

P should always be given the opportunity to be joined as a party if he so wishes, and whether or not he is joined, he must still be supported to express his views on the application and to participate if he so wished. By these measures, the President determined that the demanding standards of the ECHR could be met without P being joined as a party.

The remedy – the Re X Procedure
A new Practice Direction followed, part 2 of which sets out the streamlined procedure for applications to the court under section 16(2)(a) of the Act (to authorise a DoL, where P is cared for in domestic settings).

It includes a requirement to consult P, (who should be provided with certain information), and an acknowledgment that P is entitled to express his views, which should then be communicated to the court. P is entitled to seek to take part in the proceedings ‘by being joined as a party or otherwise’, with any such request by P to do so again being communicated to the court.

The Re X Appeal: P invited to be party
In the meantime, an appeal had been lodged (by two of the parties to Re X No 2 and the Law Society) in relation to various aspects of the President’s judgments.

That appeal was heard on 16th June 2015 in Re X (Re X (Court of Protection Practice) [2015] EWCA Civ 599), when the Court of Appeal (CA) acknowledged the President’s intention to establish ‘a workable procedure which would cater for the influx of work in the Court of Protection, pending the making of appropriate rules’.

However, the CA found itself in something of a predicament, as it recognised that it had no jurisdiction to hear the appeals, (as the President had not made decisions against which any appeal could lie).

Helpfully though the CA went on to express, in the strongest of terms, their belief that certain of the President’s conclusions were flawed The three members were unanimous in their assertion that fundamental principles of domestic law and the requirements of the ECHR demand that P be a party to proceedings for authorisation of a DoL.

LJ Black advised, ‘it is generally considered indispensable in this country for the person whose liberty is at stake automatically to be a party to the proceedings in which the issue is to be decided’.

He continued, ‘had I been in a position to determine the issue in these proceedings, I would have held that in order that deprivations of liberty are reliably subjected to thorough scrutiny, and effective procedural safeguards are provided against arbitrary detention in practice, it is presently necessary for P to be a party in the relevant proceedings’ (paragraph 108).

If P is to be a party in all cases, will the Re X streamlined procedure be reviewed, or replaced by a new procedure?

Applications under s16(2)(a) of the Act remain time-consuming and expensive (in comparison to the DOLS procedure where P is in a registered care home or hospital). There may be increased pressure to replace the s16(2)(a) Act requirements with a regime comparable to DOLS, providing for the administrative authorisation of a DoL in domestic settings, and so avoiding the need for any court application from the outset.

It is worth remembering however, that the House of Lords Select Committee viewed DOLS as ‘not fit for purpose’ and ‘poorly drafted and overly complex’ (House of Lords Committee on the Mental Capacity Act 2005) – although the government disagreed with this analysis.

Still falling through the cracks:

• The funding gap

The acknowledgment that P must joined as a party in all DoL cases is welcome news. But how will P fund his case?

Under the DOLS regime, non-means tested public funding is available for P to challenge his deprivation of liberty in the Court of Protection under s21A Act.

For s16(2)(a) Act applications, public funding is available for P, but it is means-tested. This places an additional hurdle before P that appears arbitrary and irrational. P has not chosen his placement; it has been chosen for him. Why then should P be discriminated against, on the basis of the nature of that placement), when accessing public funding to challenge the DoL in that placement?

• Ease of access to justice

Even with access to non-means tested funding, it can still be difficult for P to bring a DOLS challenge. In AJ v A Local Authority [2015] EWCOP 5, AJ was extremely unhappy in residential care and wished to challenge her standard DOLS authorisation.

The procedural safeguards in place to help a person detained under DOLS to exercise their right to seek a court review of the lawfulness of their detention include the appointment of a relevant person’s representative (RPR), and an independent mental capacity advocate (“IMCA”) appointed under s39D of the Act.

In AJ’s case, her niece’s husband was her RPR, and he supported the arrangements for her care. Poor communication between the RPR and the IMCA then led to considerable delay in bringing AJ’s case before the Court.

Baker J noted it was ‘likely to be difficult for a close relative or friend who believes that it is in P’s best interests to move into residential care, and has been actively involved in arranging such a move, into a placement that involves a deprivation of liberty, to fulfil the functions of RPR, which involve making a challenge to any authorisation of that deprivation’.

Further, the local authority should ‘have made enquiries as to why the IMCA was not taking steps to ensure that the right to apply to the court was being exercised.

AJ’s appeal did at least come before the Court, eventually.

However, Care Quality Commission findings indicate that approximately one application is made to the Court of Protection for every 40 individuals made subject to DOLS (Monitoring the use of the Mental Capacity Act Deprivation of Liberty Safeguards in 2012/13, London 2014). In Wales, the inspectorate ‘tracked’ 84 DOLS cases, none of which resulted in an application to the Court of Protection (Care and Social Services Inspectorate Wales and Health Inspectorate Wales, A National Review of the use of Deprivation of Liberty Safeguards (DoLS) in Wales, Merthyr Tydfil 2014).(Consider these modest statistics in the context of the 26,109 appeals to the first-tier tribunal against detention under the Mental Health Act 1986 (as amended) made in the same period).

In summary
P must now be a party to any proceedings where P’s liberty is at issue. The Re X streamlined procedure for court authorization of P’s deprivation of liberty in a domestic setting must be reviewed.

In a significant parallel development, the Law Commission’s review of DOLS is also being accelerated, with their report and draft bill due to be published by the end of 2016, instead of 2017 as originally planned.

As Lady Hale stated in Cheshire West (paragraph 45): ‘People with disabilities, both mental and physical, have the same human rights as the rest of the human race.’

As the stars align in the law and procedure concerning the right to liberty for those who lack capacity to make their own decisions, we now need to see non-means tested legal aid available to enable P to exercise his rights, wherever he may may find himself detained.

Further, to ensure we are not just paying lip service to the concept of equal rights for all, we need to ensure support is routinely given to assist P in understanding his legal rights and in accessing justice, in the exercise of those rights.