Wednesday, 17 June 2015

Deprivation of Liberty ~ Coroner's Inquests and other matters

Deprivation of Liberty Safeguards continue to raise problems.  The law is to be found in the Mental Capacity Act 2005 Schedule A1 (Hospital and Care Home Residents: Deprivation of Liberty).  Age UK publish a useful factsheet

Increased number of applications:

In Bournemouth Borough Council v PS and DS [2015] EWCOP 39, Mostyn J called for the Supreme Court to review its decision in Cheshire West which was concerned with when an individual is deprived of liberty - P v Cheshire West and Chester Council [2014] UKSC 19 and press summary.  Having noted the considerable increase in the number of DOL applications since Cheshire West, the learned judge commented -

'In the light of the decision of the Supreme Court local authorities have to err on the side of caution and bring every case, however borderline, before the court. For if they do not, and a case is later found to be one of deprivation of liberty, there may be heavy damages claims (and lawyers' costs) to pay. I remain of the view that the matter needs to be urgently reconsidered by the Supreme Court.'

Coroner's Inquests:

A further difficult issue - causing added distress for families - is whether there has to be a Coroner's Inquest when an individual subject to deprivation of liberty dies.  Manchester Evening News 17th June reported that -

'Thousands of dementia patients are being classed as in ‘state detention’ thanks to red tape .... meaning they must have an inquest when they die. Families have spoken of their horror at learning they must wait weeks to bury their loved one even if they have passed away of natural causes.'

The Chief Coroner (His Honour Judge Thornton QC) has issued guidance on this subject - Chief Coroner's Guidance No. 16 - Deprivation of Liberty Safeguards

The guidance clearly takes the "safer" view that a person subject to DOLS is in "State Detention" and that an inquest is therefore required though it need not be an "Article 2 Inquest" and could, in appropriate cases, be a "paper inquest" held in open court.

Re X "streamlined" DOLS procedure:

On 17 November 2014, the Court of Protection launched a new streamlined process for managing court-authorised deprivations of liberty - see Practice Direction November 2014. The new process implemented guidelines set out by the President of the Court of Protection in two judgments: Re X and others (Deprivation of Liberty) [2014] EWCOP 25, and Re X and others (Deprivation of Liberty) (Number 2) EWCOP 37.

The Re X procedure seeks to enable the court to decide applications for a court-authorised deprivation of liberty on the papers only, without holding a hearing, provided certain safeguards are met: Those safeguards include ensuring that:

The person who is the subject of the application and all relevant people in their life are consulted about the application and have an opportunity to express their wishes and views to the court.

The person who is the subject of the application has not expressed a wish to take part in the court proceedings.

The person who is the subject of the application and all relevant people in their life do not object to the application.

There are no other significant factors that ought to be brought to the attention of the court that would make the application unsuitable for the streamlined procedure.

Latest News - Court of Appeal decision in Re X (Court of Protection Practice):

On 16th June, the Court of Appeal (Civil Division) issued a judgment concerning Court of Protection Practice in relation to Deprivation of Liberty - Re X (Court of Protection Practice) [2015] EWCA Civ 599.

The appeal concerned two questions:

1.  Whether a person who lacks mental capacity must be joined as a party to any proceedings which may result in an order depriving him of his liberty.

2.   Whether the President was entitled to follow the particular procedure he devised for the purpose of obtaining answers to various questions designed to underpin a 'streamlined' procedure, which he wished to introduce in the Court of Protection for dealing with applications for orders approving deprivation of liberty, and whether this court can and should hear an appeal against the decisions of law contained in the two judgments he delivered in the course of answering those questions.

I will leave aside question 2.  On question 1,  the Court of Appeal essentially said that the individual ought to be joined as a party.  For more on the Court of Appeal decision see Law Society Gazette 16th June 

Previous Post:

The Elephant Test - Law and Lawyers 16th June 2015

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