Alex RKThe President of the Court of Protection has issued a preliminary judgment outlining the answers to some of the key questions posed in the post-Cheshire West cases heard in June as to how a ‘streamlined’ Article 5 ECHR compliant process can be developed for the judicial authorisation of deprivations of liberty. Together with Neil Allen and Tor Butler-Cole, I have produced this document which provides a practical guide to such applications (and seeks to answer some of the questions arising from the judgment).
The most crucial aspects of this procedure are the requirements for the application to set out:
35 vii) “The basis upon which it is said that the arrangements are necessary in P’s best interests and why there is no less restrictive option (including details of any investigation into less restrictive options and confirmation that a best interests assessment, which should be attached, has been carried out).
viii) The steps that have been taken to notify P and all other relevant people in P’s life (who should be identified) of the application and to canvass their wishes, feelings and views.
ix) Any relevant wishes and feelings expressed by P and any views expressed by any relevant person.”
And:
xiv) “Any factors that ought to be brought specifically to the court’s attention (the applicant being under a specific duty to make full and frank disclosure to the court of all facts and matters that might impact upon the court’s decision), being factors:
a) needing particular judicial scrutiny; or
b) suggesting that the arrangements may not in fact be in P’s best interests or be the least restrictive option; or
c) otherwise indicating that the order sought should not be made.”
Taken together, these require the applicant, which will in most cases be the local authority ultimately responsible for the deprivation of liberty, to ascertain and report fully and honestly the views and wishes of P and their family and to identify any potential weaknesses in its own case, thereby laying itself open to the risk of a contested oral hearing and vastly greater costs. If it doesn’t, but its application appears to be sound and reasonable “on its face”, the judge will have no means of knowing what he or she hasn’t been told, as there will be no other source of evidence. The process will not then be compliant with Article 5, as Munby made clear (Para 19):
“P should always be given the opportunity to be joined if they wish and whether joined as a party or not must be given the support necessary to express views about the application and to participate in the proceedings to the extent that they wish. So long as that demanding standard is met, and in my judgment it can in principle be met without P being joined as a party, there is no need for P to be a party.”
What’s missing from this process is most of the safeguards, imperfect though they are, which are built into DoLS. There’s no Representative, no Section 39 IMCA, no gold-plated Legal Aid (so no easy route to legal representation), no independent best-interests assessment by a BIA, no conditions or short authorisations unless the applicant alerts the judge to the need for them, and not even a guarantee of a medical assessment by a trained assessor. Everything therefore depends on the applicant authority always behaving with the utmost scruple, which expectation flies in the face of several recent cases, or on the judge being able to recognise from its application that it isn’t, which is also an unrealistic expectation bearing in mind the volume of cases and the brevity of the information being requested. This is therefore a procedure which “in principle” is Article 5 compliant, but which in practice is unlikely to be.
However, the process which needs to be followed by the applicant is very similar to a DoLS assessment, and the information which it needs to produce falls under the same six headings and addresses the same legal tests, albeit that a judge would need a good deal more background detail than is normally contained in the assessors’ reports. The best way, therefore, for applicants to demonstrate good faith would be for them to adopt an internal procedure which is as close to DoLS as possible, and using the same assessors who are already trained and experienced in addressing these issues in a way which (hopefully) is compliant with both the letter and the spirit of the ECHR. This would also have the merit of avoiding the invention of another, slightly different bureaucratic wheel with all the confusion and cost which that always entails. It would of course throw yet more work on the overloaded DoLS teams, but would ensure a consistency of practice and of safeguards regardless of the type of setting in which P was placed.
Roger Hargreaves