(1) Two recent decisions of the President of the Court of Protection outline interim processes for authorizing deprivations of liberty, including streamlined procedures and new forms. (2) Key features of the interim process include allowing authorization without an oral hearing in all cases, clear guidance on evidence required, and not requiring the person's representation. (3) Regarding representation of the person, there is no requirement that the person be joined as a party or have a litigation friend, but reconsideration of authorization can be requested by the person or others interested in their welfare.

1. 27 January 2015
Catherine Dobson
Barrister, Thirty Nine Essex Street
Catherine.dobson@39essex.com
Court of Protection
Judicial authorisation of
deprivation of liberty

2. Overview
• 2 decisions of Sir James Munby, President of the Court of
Protection
(1) Re X (No. 1):[2014] EWCOP 25
(2) Re X (No. 2): [2014] EWCOP 37
• New Practice Direction 10A amended to include Part 2
“Applications under section 16(2)(a) for an order authorising
deprivation of liberty under section 4A(3) and (4) pursuant to a
streamline procedure”. Took effect from 17 November 2014
• New form: DOL10
• Model order

3. Key features of the interim process
“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.”
Re X (No. 1):[2014] EWCOP 25 at [5]
(1) Oral hearing not required in all cases
(2) New forms and clear guidance on evidence required
(3) P’s representation not required

4. Issue of P’s representation
“It is essential that where the issue concerns P’s deprivation of liberty the Court of
Protection’s processes are rigorous, so that the circumstances of the individual case
are subjected, as they must be, to the strict scrutiny demanded by the Convention.”
BUT “There is no point in a system which requires there to be a litigation friend, let
alone which requires the litigation friend to instruct lawyers, if the reality is that there
is, because of an absence of legal aid and possible exposure to an adverse costs
order, no-one willing and able to accept appointment as litigation friend.”
Re X (No. 2): [2014] EWCOP 37 at [36]
(1) Does P need to be joined to any application seeking authorisation of a DoL in
order to meet the requirements of Article 5(1) and/or Article 6 ECHR? No
(2) If so, should there be a requirement that P have a litigation friend? No (but this
would required change to the CoP Rules)
(3) If P or the detained resident requires a litigation friend, can that be someone who
does not otherwise have the right to conduct litigation? Yes (but cannot address
court without permission)

5. Key features of the interim process
(4) Reconsideration: by P, any party, or any person
properly interested in P’s welfare (i.e. wider than usual
Rule 89 provisions)
(5) Time for reviews: Mandatory annual reviews
(save where circumstances require more frequent
reviews) by judicial body. Where appropriate annual
reviews can be on the papers.

6. 27 January 2015
Alex Ruck Keene
Barrister, Thirty Nine Essex Street and Honorary
Research Lecturer at the University of Manchester
alex.ruckkeene@39essex.com
Court of Protection – what’s
coming down the line

7. Deprivation of liberty
• New forms for DOLS authorisations – from 32 down to 13
• Rochdale MBC v KW Court of Appeal (4 or 5 February)
• Deprivation of liberty at home
• Freedom to leave
• Re X Court of Appeal (floating 17-19 February)
• Does P need to be a party?
• Does there need to be an oral hearing?
• Guidance commissioned by DH as to what DOL looks likes now, February 2015
• Law Commission: consultation summer 2015, draft legislation summer 2017
• Keep yourself current http://www.mentalcapacitylawandpolicy.org.uk/resources-
2/cheshire-west-resources/

8. More widely
• The jurisdiction of the COP: the available options:
• ACCG v MN: judgment of Court of Appeal awaited
• Case management
• ACCG v MN: the end of adult wardship proceedings
• Rule changes in the COP – first tranche sent to
President on 25 January for consideration.

9. And – even – more widely
• Is the MCA (remotely) compliant with the Convention on
Rights of Persons with disabilities?
• Scrutiny of UK by Committee on CRPD pushed back -
was due to be 2015

10. Keeping yourself up-to-date
• www.39essex.com/newsletters; marketing@39essex.com
• www.copcasesonline.com
• www.mclap.org.uk
• www.mentalhealthlaw.co.uk