IntroductionDOLSDOLSPractice Guidance:Court of Protection Practice Direction 10AADOLS(reproduced in full in appendix A)DOLSCodes of Practice:Deprivation of Liberty Safeguards (DOLS) Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice (2008)DOLSDOLSDOLSDOLS
21.1This chapter considers applications to the Court of Protection which concern deprivation of P’s liberty, and therefore engage P’s rights under Article 5 of the European Convention on Human Rights (ECHR).
1See Human Rights Act 1998 Sch 1 in appendix A. In very brief terms, Article 5 will be engaged where three elements are present:
2Storck v Germany (App No 61603/00), (2006) 43 EHRR 6.•The ‘objective element’: confinement in a particular restricted space for a not negligible length of time; and
•The ‘subjective element’: there is no valid consent. Lack of objections from a patient without capacity is not consent; and
•The deprivation must be imputable to the state.
21.2The chapter falls into two parts. Each part deals with a specific area of the court’s jurisdiction: applications under MCA 2005 s21A and ‘
Re X’ applications under MCA 2005 s16. Both types of application fall outside the scope of the pathways set down under the Case Management Pilot
3PD Case Management Pilot para 3.1. and have their own procedures, set out in Practice Direction 10AA. They do not fall outside the Transparency Pilot (discussed in chapter 13), and, as discussed in para 4.101, they may not fall outside the scope of the Case Management Pilot altogether.
21.3The volume of both types of application has expanded dramatically since the publication of the first edition of this work, in particular following the judgment of the Supreme Court in
P v Cheshire West and Chester Council4P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council [2014] UKSC 19, [2014] AC 896. (‘
Cheshire West’). The Supreme Court formulated what has become known as the ‘acid test’ for the objective element of deprivation of liberty – that P is not free to leave and is subject to continuous supervision and control. The concept of deprivation of liberty generally is discussed at paras 3.166 onwards; for more detail as to the decision of the Supreme Court and its implications for different settings, reference should be made to the guidance commissioned by the Department of Health and prepared by the Law Society,
5Law Society, Deprivation of liberty: a practical guide (April 2015); at www.lawsociety.org.uk/support-services/advice/articles/deprivation-of-liberty/. but caution is required because the case-law in this area is fast-moving. See appendix G for useful and free resources.
21.4The first part of the chapter considers challenges to standard and urgent applications granted under the so-called Deprivation of Liberty Safeguards (DOLS), where P is detained in a hospital or care home. This important function of the Court of Protection was given to it after the Mental Capacity Act (MCA) 2005 came into force. By amendments to the MCA 2005 made by the Mental Health Act (MHA) 2007, the Court of Protection was given the task of considering applications under MCA 2005 s21A in respect of authorisations granted under the deprivation of liberty safeguards regime introduced by the MHA 2007 in the form of Schedule A1 to the MCA 2005. These safeguards were introduced to seek to fill the legislative lacuna (known as the ‘Bournewood gap’) which was exposed in the important case of
HL v UK.
6HL v UK (App No 45508/99), [2004] ECHR 471, (2004) 7 CCLR 498. The jurisdiction of the Court of Protection under MCA 2005 s21A overlaps with its jurisdiction to make declarations and decisions regarding P’s health and welfare under MCA 2005 ss15–16, but it is essentially a standalone jurisdiction. It can only be understood by reference to the – complex – provisions of Schedule A1. These are explained in detail in paras 3.166–3.231.
21.5An important judgment by Baker J in 2015 (
AJ (by her litigation friend the Official Solicitor) v A Local Authority7AJ (by her litigation friend the Official Solicitor) v A Local Authority [2015] EWCOP 5, (2015) 18 CCLR 158., discussed in para 21.22 below) raised awareness of the importance of bringing cases before the Court where P wishes to challenge a DOLS authorisation. As a result of both this judgment as well as
Cheshire West, practitioners will have seen an increase in such challenges.
21.6The second part of the chapter examines applications made under MCA 2005 s16, on form COPDOL10. This process is for non-contentious applications to deprive P of his or her liberty in settings other than care homes or hospitals. Such applications are often referred to as
Re X applications, after the series of
Re X cases.
8Re X [2014] EWCOP 25, [2015] 1 WLR 2454; Re X [2014] EWCOP 37, [2015] 1 WLR 2454 and Re X (Court of Protection Practice [2015] EWCA Civ 599, [2016] 1 WLR 227. The process of establishing the safeguards to which P is entitled has been a controversial one. For now, the process is as laid down in two judgments of Charles J,
Re NRA,9Re NRA and others [2015] EWCOP 59, [2015] COPLR 690, (2015) 18 CCLR 392. and
Re JM.
10Re JM and others [2016] EWCOP 15, [2016] 4 WLR 64. These cases will usually be dealt with on the papers, with P not joined as a party but supported by a representative appointed under COPR Pr1.2(c)/ COPR r3A(2)(c).
11See chapter 11 for a discussion of this role. This section will summarise the procedural requirements for such applications and draw together guidance for those involved.
21.7With the increase in both types of applications the challenges for all involved is to ensure that the Article 5 safeguards are practical and effective and add value for P in a climate of financial austerity.
21.8Readers will be aware that the Law Commission has recommended legislative change which would replace both the DOLS and the
Re X regime. A draft Bill will be published in March 2017, but at the time of writing the precise nature and extent both of the draft Bill and the likely timescale for the implementation of the recommendations are unclear.
12www.lawcom.gov.uk/project/mental-capacity-and-deprivation-of-liberty/. This chapter is therefore limited to describing the current regime.