DOLS – Part 6
Following the Cheshire West case in 2014, where the Supreme Court, which is the highest Court in England and Wales, decided that if someone who is cognitively impaired is “under continuous control and supervision”, then they were deprived of their liberty and therefore the deprivation should be authorised. This implied that it would lead to a huge increase in the numbers of cases for authorisation by both the Local Authority, which should authorise cases in care homes and hospital and the Court of Protection, which should authorise deprivations elsewhere.
The final case that I will look at is Re X (Court of Protection). The president of the Court of Protection wanted to have brought before him a number of different cases, that had similar issues, so that he could answer the questions in one “supercase”! By the time the Re X case came before the President, even he did not how many individual cases were involved!
The president created a list of 25 questions, which he hoped he would answer and in doing so would form the basis for a streamlined process of applications to the Court of Protection.
The case was referred to the Court of Appeal. The Court had concerns about this list of 25 questions and whether the president had the jurisdiction to hear all of these various cases and answer his list of questions. In the end the Court decided that he did not have jurisdiction.
One of the questions that the Court of Protection asked was whether the person being deprived of their liberty should be joined as a party to the case, which means that they would have the right to be heard by the Court, either directly or via some carer / advocate / family member etc. The Court would always join the person where the matter was controversial, as in these circumstances, the Court would always want to hear from the person, but what about in cases that were not controversial or contested? The Court of Protection, in looking at a streamlined process decided that they didn’t have to be joined, which meant that they still might be, but didn’t have to be. The Court of Appeal overruled this and said that they should always be joined, because if someone is being deprived of their liberty, they should be involved. Being deprived of their liberty is what happens when people are convicted of a criminal offence and sent to prison, so to deprive someone of their liberty when they are cognitively impaired is a huge issue and that person should be involved in the process and hence joined as a party.
What has come out of this is a new Court of Protection process, with a new Practise Direction.
There have been lots of cases following Cheshire West, and many have found that a person is not deprived of their liberty, but as the Supreme Court is the highest Court, none of these cases have overruled Cheshire West, which therefore stands as case law.
The Law Commission is looking at the whole issue of deprivation of liberty and has said that it is “deeply flawed”! One of the ways in which it is intended to reform it is to change the name to “Protective Care”, which sounds so much more appealing than Deprivation of Liberty!
During the process of reform, the Law Commission undertook a consultation process, which is now closed and a final report and draft bill are due to be released in December 2016.