Bristol City Council v CC & Ors [2026] EWCOP 19 (T3) is both an important and an interesting decision. It is important because Theis J set out a clear set of expectations instructing experts, and interesting because it is an example of what is now a rare beast, a contest as to whether circumstances gave rise to a deprivation of liberty. It also includes what is now an increasingly standard reminder that dividing care and residence decisions can frequently be artificial.
Instructing experts
The guidance provided by Theis J requires reproduction in full.
10. At the invitation of the court the parties have liaised and produced an extremely helpful agreed note on the instruction of experts in the Court of Protection. This issue arose due to my concerns in this case as to (i) the length of the letter of instruction sent to the expert in this case (27 pages, 12 of which were under the heading ‘Legal Framework’), and (ii) the incoherent management of the way documents were sent to the expert prior to this hearing by the local authority (he was sent large pdf bundles with no agreed guide as to what he should read/focus on). As a result, I hope what follows will be a useful reminder of the framework in which experts are instructed in the Court of Protection and how such instructions should be managed. Those willing to give expert evidence in cases in the Court of Protection are an invaluable resource to assist the parties and the court reach decisions in these difficult cases. The parties and the court need to ensure that all necessary steps are taken to enable them to undertake that important role.
11. The procedural rules on the instruction of experts in the Court of Protection are contained in rule 15 of the Court of Protection Rules 2017 (‘COPR 2017’), as supplemented by Practice Direction 15A. The test is ‘necessary’ (rule 15.3(1) COPR 2017) and permission may only be given if it is necessary to assist the court to resolve the issues in the proceedings and could not otherwise be provided by a rule 1.2 representative or in a report pursuant to s49 MCA 2005 (rule 15.3(2) COPR 2017).
12. When making an application for the instruction of an expert on form COP9 the application must include a draft letter of instruction to the expert (rule 15.5 (2)(f) COPR 2017). The expectation is that the draft letter of instruction should be approved by the court or, if not (due to urgency or some other reason), clear directions in the order for the letter to be finalised with the questions for the expert being approved or overseen by the court.
13. The letter of instruction must be focussed and adapted to the facts of the particular case. Previous cases provide helpful guidance (such as Poole J in AMDC v AG and CI [2020] EWCOP 58[28 (b)] “28… (b) [t]he letter of instruction should, as it did in this case, identify the decisions under consideration, the relevant information for each decision, the need to consider the diagnostic and functional elements of capacity, and the causal relationship between any impairment and the inability to decide. It will assist the court if the expert structures their report accordingly. If an expert witness is unsure what decisions they are being asked to consider, what the relevant information is in respect to those decisions, or any other matter relevant to the making of their report, they should ask for clarification.” [emphasis added]). Lengthy and unwieldy recitations of the background facts and procedural history are to be avoided, as well as detailed descriptions of previous case law.
14. It may be helpful to keep in mind the following as the key components of a letter of instruction to an expert:
(1) A brief neutral statement of the essential facts of the case.
(2) A list of materials with which they are being provided for the purpose of the assessment the expert is undertaking.
(3) A core legal framework setting out the central principles of the MCA 2005, a summary of the relevant sections of the MCA 2005 should suffice and, if appropriate, to reflect, for example, the order in which a capacity assessment should be approached, as set out by the Supreme Court in A Local authority v JB [2021] UKSC 52. Any such references should be kept succinct and must be relevant.
(4) If assessing capacity, identification of the relevant decisions to be assessed, with the relevant information for each decision as agreed between the parties. If required there can be a brief explanation as to where the information derives, providing confirmation that what the relevant information consists of should ultimately be a matter for the relevant expert to determine when undertaking the assessment, and a reminder of the importance that the expert is not an arbiter of fact.
(5) Confirmation as to whether the proceedings are in public or private and details of any Transparency Order in place.
(6) Details of any person(s) the parties consider the expert should or may meet with, and remind the expert of the importance of there not being any unrecorded/informal discussions.
(7) The letter should clearly identify timescales for the report, dates of hearings/oral evidence, confirmation of who the report will be disclosed to, and a reminder about the ability to pose questions of clarification (rule 15.7. COPR 2017). It should also contain information about the expert’s fees.
15. Questions to the expert after the filing of their report should only be done in accordance with rule 15.7(2) COPR 2017 or by order of the court (rule15.7(3) COPR 2017). In accordance with rule 15.7(2)( c) COPR 2017, any such questions must be for the purposes of clarification only.
16. In addition to ensuring experts have all the relevant documents at the point of their instruction, the parties should keep under active review what further evidence or documents should be sent to the expert with a suitable covering message identifying the relevant documents. If agreement is not possible, a COP9 application will need to be issued setting out the issue and the parties’ competing positions with a draft order attached. This will enable the court, if appropriate, to determine the issue on the papers.
17. If an expert is going to give oral evidence at a hearing, they should be provided with the following in advance of the hearing by the lead instructing party:
(i) An updated court bundle at the same time as the bundle is lodged with the court.
(ii) A list of updating documents that have been filed since their instruction, which should highlight the specific documents that the parties consider that they should review in advance of the expert giving oral evidence.
(iii) Any further ‘loose leaf’ documents filed immediately prior to the hearing, that the parties will likely refer to in the course of their questioning of the expert.
Deprivation of liberty
Official Solicitor sought to argue that the individual in question was not deprived of their liberty, whereas the public authorities (in this case the local authority, the NHS Trust and the ICB) argued that he was. The Official Solicitor’s position was founded on her contention that the acid test was not satisfied, on the basis (paragraph 82)
CC’s professional support is limited to 30 hours per week, CC has no outside support over the weekend at all or at times during the week when the professional support is not present. Ms Sutton submits that whilst CC’s grandmother is aware of where CC is when support staff are not with him she does not supervise him for that time. There is no evidence that CC has attempted to abscond or refused to return when he is out. The doors and windows are not locked at CC’s grandmother’s home. CC has a key. He is not subject to personal searches or any other restrictive practices when in the property. He has access to all rooms and is able to move around the house.
Conversely, the public authorities founded themselves on the approach of the local authority:
67. The local authority submit CC’s current and proposed care arrangements amount to a deprivation of liberty and rely on the following matters. CC is effectively prevented from leaving home and is kept under continuous supervision and control there. The restrictions in the various plans require CC to reside at his grandmother’s property, must be accompanied in the community by a responsible adult save for specific relaxations, he is cared for by two carers for 30 hours per week and the police will be immediately notified if CC accesses the community other than in accordance with the restrictions and be returned to his grandmother’s property. These restrictions amount to a significant amount of control preventing CC from accessing other places and it is this control, submit the local authority, that meet the requirements of control in the acid test. The fact that it is imposed by the family for part of the time does not prevent it from being control as CC is not free to leave in the way described by Lady Hale in Cheshire West at [48]. Mr Auburn submits the fact that the majority of care and supervision (i.e. outside the care package of weekdays) is by CC’s family is relevant to the issue of State imputability, but not to whether the acid test is met. He submits the deprivation of liberty is imputable to the State as it is decided upon, arranged, funded, overseen and reviewed by the State in the form of the local authority.
68. Mr Auburn recognises there has been, and may be, some relaxation to CC’s care plan that will permit him to undertake certain trips independently but satisfying the acid test does not require the supervision and control to be 24 hours a day 7 days a week. He submits this is based on the Strasbourg cases that Lady Hale relied upon when reaching her conclusion in Cheshire West(see Ashingdane v UK (1985) 7 EHRR 528; HL v UK (2004) 40 EHRR 761 and Stanev v Bulgaria (2012) 55 EHRR 22).
Theis J found the question to be a finely balanced one:
95. Turning, finally, to consider whether the current care arrangements amount to a deprivation of liberty that requires the authorisation of the court. This issue is finely balanced. I am satisfied in the particular circumstances of this case that CC is deprived of his liberty. That requires the authorisation of the court. Whilst I accept in part the submissions on behalf of DD and the Official Solicitor, I do consider on the particular facts of this case that the objective element of the test set out in Cheshire Westis met, namely that CC is [49] ‘under continuous supervision and control and was not free to leave’ and [54] ‘under the complete supervision and control of those caring for [him] and is not free to leave the place where [he] lives’.
96. It is acknowledged the combination of the care plans that set out the structure of care for CC mean, as a matter of fact, it could be said he is not under continuous supervision and control. It is a question of fact and degree in each case. I recognise CC is on his own in the home for three hours each weekday morning whilst EE is at work before the carers arrive, the windows/doors are not locked, there are no restrictions on his movement within the home, he is not the subject of any restrictions in the home (such as searching) and he is able to leave within the care framework (such as visiting a local shop). However, there is a continuous element of control provided by the care plans such as the requirement to spend each night at his grandmother’s home and part of the care plan includes a protocol with the police, who are to be notified if CC accesses the community (save in accordance with the care framework), they are to find him and he is to be returned to EE’s home. EE is aware of where CC is when the support staff are not present, although I recognise she does not supervise him for all the period. However, the overall effect of the care plan is that the police are to be contacted if CC accesses the community other than in accordance with the care arrangements. This is for the specific purpose of finding him and returning him home.
97. I accept the local authority submission that when looked at as a whole the effect of these care arrangements is that CC is not free to leave in the way considered by Lady Hale in Cheshire West at [48] as in reality CC “is not free to go anywhere without permission and close supervision”.I agree that whether or not CC in fact attempts to leave is not the point. In Cheshire WestMIG had never attempted to leave her foster home but the fact steps would have been taken to restrain her had she done so was sufficient. As Lord Kerr observed in Cheshire West at [76] “Liberty…does not depend on one’s disposition to exploit one’s freedom.” The court needs to proceed on the basis that the care arrangements upon which CC’s residence and care are arranged will be observed. The limited and prescribed relaxation built into CC’s regime does not prevent a deprivation of liberty arising. Article 5 does not require total supervision 24 hours a day, 7 days per week.
98. The parties agree the deprivation of liberty is imputable to the State as the care arrangements set out in the care plans are decided on, arranged, funded, overseen and reviewed by the State in the form of the local authority and the ICB jointly arranging and delivering the s 117 MHA 1983 care arrangements. Also, there is no issue between the parties regarding consent. The Supreme Court has heard argument and reserved judgment in the Northern Ireland reference UKSC/2025/0042, concerning the issue of consent. No party in this case is contending that CC consents to the restriction on his liberty of the police being called, finding him and returning him home should he access the community other than in accordance with the care plan.
Comment
In relation to the approach to experts, the precedent letter of instruction on the Court of Protection Handbook website will be amended to capture the guidance of Theis J when my fellow authors and I have a moment (although the amendments will be relatively minor, luckily).
Given that the Supreme Court’s decision is awaited in ‘Cheshire West 2,’ and my involvement in that case: I will limit my comments to (1) suggesting that Theis J’s approach to the ‘acid test,’ in line with earlier domestic caselaw, recognises that the question is not how long the leash might be, but that there is a leash; (2) noting that the very existence of the ‘acid test’ has been put in issue by the DHSC in Cheshire West 2; and (3) recognising that some might note with a wry smile that, in contradistinction to the position before the Supreme Court, the public bodies in this case were arguing for the expansive approach to deprivation of liberty, and the Official Solicitor for the restrictive approach.
