X & Ors (Deprivation of Liberty) [2014] EWCOP 25 (07 August 2014)

X & Ors (Deprivation of Liberty) [2014] EWCOP 25 (07 August 2014)

A streamlined, paper-based process for authorising deprivation of liberty in the Court of Protection is compatible with Article 5 ECHR if authorisation is judicial, robust evidence is provided, P is enabled to participate and be heard, and there is a right to oral hearing or review. Rules, practice directions, and forms require amendment to implement this process.

Citation
[2014] EWCOP 25
Parties
Advocate to the Court: Official Solicitor; Interested Party: Secretary of State for Health and the Lord Chancellor and Secretary of State for Justice; Interested Party: Law Society of England and Wales; Interested Party: Association of Directors of Adult Social Services; Interested Party: Cheshire West and Chester Council, Surrey County Council and Northumberland County Council; Interested Party: Cornwall Council; Interested Party: Worcestershire County Council; Interested Party: Sunderland City Council; Interested Party: Barnsley Metropolitan Borough Council; Interested Party: Rochdale Metropolitan Borough Council; Interested Party: Surrey Downs Clinical Commissioning Group; Interested Party: NHS Sheffield Clinical Commissioning Group; Interested Party: Nottinghamshire Healthcare NHS Trust; Individual: KW (a patient); Individuals: AS and GS (patients); Individual: PMLP (a patient); Interested Party: Mind
Jurisdiction
England and Wales
Judgment Date
07 August 2014
Procedural Posture
Court of Protection Directions/preliminary Judgment / Preliminary Judgment on Streamlined Deprivation of Liberty Process
Outcome
Preliminary judgment; directions for further work and amendments to rules, practice directions, and forms.
Legal Topics
Deprivation of Liberty, Article 5 ECHR, Court of Protection Procedure, Litigation Friend, Judicial Review, Procedural Compliance, Medical Evidence, Party Status
Mental Capacity Human Rights Public Law Deprivation of Liberty Article 5 ECHR Court of Protection Procedure Litigation Friend Judicial Review +3 more

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Parties

Official Solicitor

Advocate to the Court

Secretary of State for Health and the Lord Chancellor and Secretary of State for Justice

Interested Party

Law Society of England and Wales

Interested Party

Association of Directors of Adult Social Services

Interested Party

Cheshire West and Chester Council, Surrey County Council and Northumberland County Council

Interested Party

Cornwall Council

Interested Party

Worcestershire County Council

Interested Party

Sunderland City Council

Interested Party

Barnsley Metropolitan Borough Council

Interested Party

Rochdale Metropolitan Borough Council

Interested Party

Surrey Downs Clinical Commissioning Group

Interested Party

NHS Sheffield Clinical Commissioning Group

Interested Party

Nottinghamshire Healthcare NHS Trust

Interested Party

KW (a patient)

Individual

AS and GS (patients)

Individuals

PMLP (a patient)

Individual

Mind

Interested Party

Procedural Posture

Court of Protection Directions/preliminary Judgment / Preliminary Judgment on Streamlined Deprivation of Liberty Process

Legal Issues

  1. 1 Whether deprivation of liberty authorisation must be judicial under Article 5(1) ECHR
  2. 2 Whether initial applications can be determined on the papers or require oral hearing
  3. 3 What evidence is required for Article 5(1)(e) ECHR compliance

Ratio Decidendi

A streamlined, paper-based process for authorising deprivation of liberty in the Court of Protection is compatible with Article 5 ECHR if authorisation is judicial, robust evidence is provided, P is enabled to participate and be heard, and there is a right to oral hearing or review. Rules, practice directions, and forms require amendment to implement this process.

Court Disposition

Preliminary judgment; directions for further work and amendments to rules, practice directions, and forms.

Orders

  • Streamlined process for deprivation of liberty authorisations is feasible and to be developed.
  • Authorisation must be judicial, not by court officer.