It is widely recognised that the decision of the Supreme Court in the Cheshire West case has resulted in an increased case-load for the Court of Protection.
Sir James Munby in Re X and others (Deprivation of Liberty)  EWCOP 25 devises a streamlined process, to enable the Court of Protection to deal with all DoL cases in a timely way. He seeks to distinguish between those cases that can be dealt with on the papers and those which require an oral hearing.
The hearing itself was a listing of a number of DoL’s cases which the President brought together for the purposes of providing his comprehensive guidance. He sets out:
- The authorisation of a deprivation of liberty of an individual must be by a judge rather than a court officer in order to comply with article 5(1) ECHR, but neither Article 5(1) nor Article 5(4) nor the Rules require that the initial determination must involve an oral hearing.
- ‘Triggers’ indicating the need for an oral hearing and the inappropriateness of dealing with the application on the papers would be:
- Any contest, whether by P or by anyone else, to any of the material matters of the application.
- Any failure to comply with any of the requirements to notify P and all other relevant people in P’s life (who should be identified) of the application and to canvass their wishes, feelings and views.
- Any concerns arising out of P’s or any relevant persons wishes and feelings, any matter of particular urgency or matter that should specifically be brought to the Courts attention.
- Any objection by P.
- Any potential conflict with any advanced decision of P or any relevant direction of their LPA or deputy.
- Any other reason the court thinks may make an oral hearing necessary or appropriate.
- In order to be article 5(1) compliant there should be succinct professional medical evidence establishing that P is of unsoundness of mind of a kind warranting the proposed measures and persisting at the time when the decision is taken.
- P does not need to be joined as a party to the proceedings but must be able to participate in the proceedings in such a way as to enable P to present their case properly and satisfactorily. If P is party to the proceedings they must have a litigation friend.
- Where a DoL has been authorised by the Court there must be a review by a judge at least annually, or more frequently than that if the circumstances so require. Such a review can be on the papers without the need for an oral hearing.
- A separate application must be made for each individual, but there is no reason why material, which is generic to a number of individuals, should not be contained in a single ‘generic’ statement.
The President references the new application forms in children cases in family proceedings in his judgment and anticipates that once reformed DoL’s applications will be front loaded in the same way. He advises that a new DoL application form should include specified documents that the court must have in all DoL’s cases, namely:
- A draft order, including the duration of the authorisation sought and appropriate directions for automatic review and liberty to apply.
- Proof that P is 16 years old or more and is not ineligible to be deprived of liberty under the 2005 Act.
- The basis upon which it is said that P suffers from unsoundness of mind (together with the relevant medical evidence).
- The nature of P’s care arrangements (together with a copy of P’s treatment plan) and why it is said that they do or may amount to a deprivation of liberty.
- The basis upon which it is said that P lacks the capacity to consent to the care arrangements (together with the relevant medical evidence).
- The basis upon which it is said that the arrangements are or may be imputable to the state.
- The basis upon which it is said that the arrangements are necessary in P’s best interests and why there is no less restrictive option (including details of any investigation into less restrictive options and confirmation that a best interests assessment, which should be attached, has been carried out).
- The steps that have been taken to notify P and all other relevant people in P’s life (who should be identified) of the application and to canvass their wishes, feelings and views.
- Any relevant wishes and feelings expressed by P and any views expressed by any relevant person.
- Details of any relevant advance decision by P and any relevant decisions under a lasting power of attorney or by P’s deputy (who should be identified).
- P’s eligibility for public funding.
- The identification of anyone who might act as P’s litigation friend.
- Any reasons for particular urgency in determining the application.
- Any factors that ought to be brought specifically to the court’s attention
- a) needing particular judicial scrutiny; or
- b) suggesting that the arrangements may not in fact be in P’s best interests or be the least restrictive option; or
- c) otherwise indicating that the order sought should not be made.
The above guidance is designed to be a broad framework of what would be required for a streamlined process and the President sets out that further legal reform will be necessary. He also raises questions in his judgment in relation to standard and urgent authorisations and intends to address these issues in a further judgment, which will no doubt be handed down later this year.