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A New Procedure For Deprivation Of Liberty

Our People - Maria Nicholas
7 April, 2015

Summary

✚ If an individual is not free to leave a care setting and is under continuous supervision and control then that person is being deprived of their liberty.
✚ Care providers have a responsibility to ensure that any restrictions they place on a resident are lawful; that is, if they do amount to a deprivation of liberty then they are properly authorised.
✚ Care homes should make use of Schedule A1 of the Mental Capacity Act 2005 and apply for a standard authorisation if they consider a resident to be deprived of their liberty.
✚ It is the local authority in which the individual is residing, or which is funding the placement, that should make an application to the court for authorisation of a deprivation of liberty.
✚ For supported living care or care provided within someone’s own home, Schedule A1 does not apply. Care providers will have to make use of the steps in the new Practice Direction.
✚ If care providers think one of their residents is being deprived of their liberty and the local authority is not taking steps to have this deprivation authorised, they should bring it to the attention of social services as soon as possible.

Over the past year there have been many changes in the law relating to deprivation of liberty.

The Supreme Court gave judgement in the case of Cheshire West in March 2014, fundamentally changing the test of whether or not someone is deprived of their liberty. In relation to an individual lacking capacity, the test has now become:

  1. Is the person in question free to leave? and
  2. Is the person in question under continuous supervision and control?

If the answer to the first question is ‘no’ and the answer to the second is ‘yes’, then that person is being deprived of their liberty. This new test means that many more people will now be considered as being deprived of their liberty.

Two recent judgements (Re X 1 and 2) from Sir James Munby, the President of the Court of Protection, set out how such situations should now be dealt with. There is also an amended Practice Direction to the Court of Protection rules. This sets out the steps that should be taken if a person is deprived of their liberty and the court needs to authorise it.

” if you are providing care within a registered care home, you should be making use of Schedule A1 of the Mental Capacity Act 2005.”

Care home or supported living?

If a person who lacks capacity is detained, or is likely to be detained, in a care home or hospital, the managing authority of that institution must request an authorisation from their supervisory body (the local authority or NHS Trust). If the supervisory body grants this, it is known as a standard authorisation. It authorises the individual’s deprivation of liberty in that care home or hospital.

The first point to note is that if you are providing care within a registered care home, you should be making use of Schedule A1 of the Mental Capacity Act 2005 by applying for a standard authorisation.

If you are providing care within a setting that is not a registered care home, for example in supported living or within someone’s own home, Schedule A1 does not apply. You will have to make use of the new steps set out by the court in Re X and in the new Practice Direction.

The new procedure

The new procedure was set out by Sir James Munby in his two judgements following the Cheshire West case. It has been made concrete in the amended Practice Direction 10A (Part 2).

Part 2 of the Practice Direction applies where the Schedule A1 deprivation of liberty safeguards cannot be used, and instead an application needs to be made to the court to authorise a deprivation of liberty. It sets out the form to be used to make the application (COP DOL 10, together with Annexes A, B and C to the form) and what information those forms should include. A separate application has to be made for each individual, even if there are several individuals living in the same setting in similar circumstances. An example draft order is also included within the Practice Direction.

Once the application is made, the court will determine whether or not an oral hearing is needed or whether the authorisation can be made on the papers (‘the streamlined procedure’). It will also determine whether the individual concerned needs to be joined as a party to the proceedings, i.e. if he/she should take part in the court case.

Sir James Munby has raised the possibility in his judgements that the individual could be joined as a party but not have a litigation friend (despite possibly lacking capacity to instruct a solicitor for him/herself ). This would mean that the individual, because of his/her mental health condition, could lack capacity to instruct a solicitor but not have a litigation friend appointed to them to conduct the case on their behalf.

There have been discussions among some legal professionals in the field as to whether a new tribunal system will be required to cope with the anticipated increase in applications as a result of Cheshire West. Any such new procedure is likely to be similar to the system we already have for applications made against detention under the Mental Health Act 1983. This will, of course, take some time to establish but it could see hearings taking place in a meeting room at the care setting, just as First Tier Tribunals (Mental Health) are arranged now.

“As a care provider you have a responsibility to ensure that any restrictions placed on a resident are lawful.”

Who makes these applications and how does this affect you?

The local authority in which the individual is residing or that is funding the placement is responsible for making an application for authorisation of a deprivation of liberty. The application does not have to be made by the care provider.

However, as a care provider you have a responsibility to ensure that any restrictions placed on a resident are lawful; that is, if they do amount to a deprivation of liberty, that they are properly authorised. Otherwise, actions like preventing someone from leaving the care setting or having to place someone with challenging behaviour in seclusion (even within their own bedroom) could be unlawfully depriving them of their liberty.

If you consider that one of your residents is being deprived of their liberty and the local authority is not taking steps to have this deprivation authorised, you should contact social services to bring it to their attention as soon as possible.

Useful information

The Court of Protection has set up a dedicated team to deal with this kind of application. Their email address is: COPDOLS/S16@hmcts.gsi.gov.uk.

These new procedures have been issued on a trial basis and will be reviewed by Her Majesty’s Court Service. They would welcome feedback on how the new system is working, and you can send your comments to the email address above.

A third judgement in Re X is awaited. It is hoped that this will answer further questions on this issue. The Court of Protection Rules will also be reviewed shortly.

Further guidance from the Department of Health was issued in February 2015, explaining what constitutes a deprivation of liberty in different settings.

Original published in Expert Care Manager Magazine in the Spring 2015 edition.

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Head of Court of Protection
Maria Nicholas is a Solicitor and Director at GN Law, and the Head of the Court of Protection and Community Care Departments. Maria advises on issues of mental capacity, best interests, deprivation of liberty and all aspects of community care law.

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