Re X (Deprivation of Liberty)  EWCOP 25,  MHLO 86
"The immediate objective, in my judgment, is to devise, if this is feasible, a standardised, and so far as possible 'streamlined', process, compatible with all the requirements of Article 5, which will enable the Court of Protection to deal with all DoL cases in a timely but just and fair way. The process needs, if this is feasible, to distinguish between those DoL cases that can properly be dealt with on the papers, and without an oral hearing, and those that require an oral hearing. In my judgment, that objective is feasible and can be achieved. ... This is a preliminary judgment, setting out briefly my answers to those of the 25 questions which require an early decision if the objective I have identified is to be carried forward. It concentrates on the issues directly relevant to what I will call the 'streamlined' process. It sets out no more than the broad framework of what, in my judgment, is required to ensure that the 'streamlined' process is Article 5 compliant. Additional, detailed, work needs to be carried out as soon as possible by the Court of Protection in conjunction, where appropriate, with the [rules] Committee. A further judgment will follow in due course, elaborating on my reasons for deciding as I have and dealing with the questions ... not dealt with in this judgment."
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
MENTAL DISORDER — Incapable person — Deprivation of liberty — Requirement to periodically review deprivation of liberty authorisations — Guidance on approach to “streamlined” process required to deal with increased case load — Human Rights Act 1998, Sch 1, Pt I, art 5 — Mental Capacity Act 2005, s 64(5) (as inserted by Mental Health Act 2007, s 50(7), Sch 9, para 10(4))
In re X and others (Court of Protection Guidance: Deprivation of Liberty Cases)
B;  WLR (D) 376
Ct of Protection: Sir James Munby P: 7 August 2014
Guidance given on the approach to a “streamlined” process to deal with all deprivation of liberty (“DoL”) cases in a timely but just and fair way which was compliant with article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Sir James Munby P, sitting in the Court of Protection, gave the guidance in a reserved judgment when giving directions and guidance on the practical and procedural implications for the Court of Protection of the likely large increase in its case load which would follow in consequence of the Supreme Court's decision in Surrey County Council v PB, which had determined that mentally incapacitated persons had the same rights to liberty as everyone else, and if their living arrangements would amount to a deprivation of liberty of a capacitous person they were also a deprivation of liberty of the incapacitated person, who was therefore entitled to periodic independent checks to ensure that the deprivation of liberty remained justified in his or her best interests.
SIR JAMES MUNBY said that it was not yet clear just how large the increase in case load would turn out to be. The immediate objective was to devise a standardised and so far as possible “streamlined” process, compatible with all the requirements of article 5 of the Convention, which would enable the Court of Protection to deal with all DoL cases in a timely but just and fair way. The process needed to distinguish between those DoL cases that could properly be dealt with on the papers, and without an oral hearing, and those that required an oral hearing. Setting out briefly in a preliminary judgment the answers to those of the 25 questions which required an early decision, concentrating on the issues directly relevant to that “streamlined” process and to ensuring it was article 5 compliant, inter alia: (1) Any authorisation of a DoL by the Court of Protection should be by a judge, not a court officer. (2) None of article 5(1), article 5(4) or the Court of Protection Rules 2007 (SI 2007/1744) required that the initial determination had to involve an oral hearing; there were cases where, assuming a sufficiently robust process, the initial determination could properly be made on the papers, so long as there was an unimpeded right to request a speedy review at an oral hearing. (3) Triggers for an oral hearing would include, inter alia, any contest, concerns, or objections by P. (4) and (5) Compliance with the three Winterwerp v The Netherlands (1979) 2 EHRR 387 requirements was essential to ensure compliance with article 5: (i) medical evidence establishing unsoundness of mind, (ii) of a kind warranting the proposed measures and (iii) persisting at the time when the decision was taken. (7) and (9) It would not be necessary to join P as a party but, if joined P would need a litigation friend. (11)–(13) Where a DoL had been authorised by the Court of Protection reviews would take place typically approximately annually, unless circumstances required a shorter period; the review had to be judicial and could take place on the papers. (17–19) Requirements for amendments to ensure article 5 compliance would include amendment of rules 50 and/or 51 of the 2007 Rules to remove the requirement for permission to start proceedings in a DoL case; rule 89(3)(a) would require amendment to remove the 21-day time limit in DoL cases; Practice Directions PD4A, PD6, PD7A, PD 8A and PD10AA would need to be reviewed to see whether they might require amendment. (20) New Court of Protection forms would require to be designed for the “streamlined” process and their use made mandatory; the applicant would have to produce at the outset, together with the application form, the specified documents which the court had to have in any DoL case. To ensure compliance with that requirement the application form could usefully adopt the format and techniques successfully used in the Court of Appeal, the Administrative Court and, most recently in the redesigned application forms used in children cases in the Family Court. (21) Separate applications would have to be made for each individual, even if there were a number of people in the same placement, because each case had to be considered separately and on its own merits.
Appearances: Alexander Ruck Keene and Benjamin Tankel for the Official Solicitor, as advocate to the court; Joanne Clement for the Secretary of State for Health and the Lord Chancellor and Secretary of State for Justice; Stephen Cragg QC for the Law Society of England and Wales; Alison Ball QC and Andrew Bagchi for the Association of Directors of Adult Social Services; Neil Allen for Cheshire West and Chester Council, Surrey County Council and Northumberland County Council; Michael Dooley for Cornwall Council; Bethan Harris for Worcestershire County Council; Conrad Hallin for Sunderland City Council; Natalia Perrett and Emily Reed for Barnsley Metropolitan Borough Council; Simon Burrows for Rochdale Metropolitan Borough Council; Michael Mylonas QC for Surrey Downs Clinical Commissioning Group; Jonathan Auburn for NHS Sheffield Clinical Commissioning Group; John McKendrick for Nottinghamshire Healthcare NHS Trust; Jonathan Butler for KW (a patient); Katie Scott for AS and GS (patients); Joseph O'Brien for PMLP (a patient). Ian Wise QC, Martha Spurrier and Alison Fiddy filed written submissions on behalf of Mind, intervening.
Reported by: Jeanette Burn, Barrister.
© 2013. The Incorporated Council of Law Reporting for England and Wales.
Neil Allen, Alex Ruck Keene and Victoria Butler-Cole, 'Mental capacity law guidance note: Judicial deprivation of liberty authorisations' (8/8/14)‡. The introduction to this document states: "[W]e outline here how an application for judicial authorisation to deprive liberty ought now to be made in light of Sir James Munby P's first judgment. We suggest that this guidance applies immediately - i.e. there is no need to wait until new application forms are developed before making applications."
Ben Troke, 'Deprivation of liberty and due process' (Browne Jacobson, 8/8/14)† [Category:Transcript]]