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Mental Capacity Law Guidance Note: the Re X process
Mental Capacity Law Guidance Note
Judicial deprivation of liberty
authorisations: the process
Authors
A: Introduction
1. In Re X and others (Deprivation of Liberty) [2014] EWCOP 25, the
President of the Court of Protection devised a streamlined process to
seek to enable the court to deal with DoL cases in a timely, just, fair
and ECHR-compatible way. In this first judgment, Sir James Munby P
set out the broad framework; the second, [2014] EWCOP 37,
elaborated on the reasons; a third judgment is awaited addressing
three remaining matters of the 25 identified by the court.
Alex Ruck Keene
Victoria Butler-Cole
Neil Allen
Anna Bicarregui
2. A new process came into effect on 17 November 2014 on a pilot basis
to implement the judgments. That process is built upon:
a. A new form, available here; accompanied by
b. A new Practice Direction, which can be found at paragraphs 27
and following of Practice Direction 10A (Deprivation of
Liberty), available here.
3. A model form of order has also been made available which will be
made – on the papers – if all the necessary criteria are satisfied: in
other words, in broad terms, all the factors point to the situation
being a “state” deprivation of liberty that is incontrovertibly in P’s best
interests requiring authorisation because they are unable to give the
requisite consent.
4. This Guidance Note does not seek to replicate the Practice Direction,
but highlights a number of particularly important points or points that
do not necessarily appear from the Practice Direction/form
themselves.
5. It is important to note at the outset that the President’s judgments in
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Disclaimer: This document is
based upon the law as it
stands as at November
2014; it is intended as a
guide to good practice, and
is not a substitute for legal
advice upon the facts of any
specific case. No liability is
accepted for any adverse
consequences of reliance
upon it.
Mental Capacity Law Guidance Note: the Re X process
Re X did not address questions of how and when the acid test set down by the Supreme Court in
Cheshire West applies – it did not, for instance, address any specific points relating to supported living.
These matters will undoubtedly be the subject of further judicial consideration in due course.
6. A final note of caution is required: as at the point of preparing this note (mid-November 2014),
permission had been sought by three of the parties to the case before the President to appeal certain
aspects of his first judgment, including his conclusion that P did not need to be a party in all cases.
B: Key points to consider
What is the court doing?
7. It is very important to understand although the common shorthand used is that the Re X process is an
application for a judicial authorisation of a deprivation of liberty, the court is actually doing two
separate things:
a. Making a decision for itself under s.16 MCA 2005 that for the “review period” (i.e. the period of
the court-authorised deprivation), the person in question is to reside at a specific placement
pursuant to arrangements made by the applicant and set out in a care plan that must be before
the court. This decision is recorded at paragraph 11 of the model order;
b. Holding (in the terms recorded also at paragraph 11) that, to the extent that the restrictions
contained in the care plan amount to a deprivation of liberty of P’s liberty, such deprivation is
authorised.
This is, strictly, not so much a decision under s.16 MCA 2005 as a (very
compressed) judgment.
8. A “Re X order” in turn, provides authority for a person (or body) to deprive P of their liberty pursuant to
s.4A(3) MCA 2005.
9. The structure set out above has the following consequences:
a. The care plan is a central part of the evidence that must be before the court because it is the
arrangements made under the care plan that amount to the deprivation of liberty (not the
placement per se). It must therefore be an accurate reflection of what is actually happening
(and, to the extent that it contains contingencies – e.g. what might happen if P tried to leave –
they are properly spelled out);
b. The court must scrutinise that care plan with care so as to be satisfied that it is in P’s best
interests as the least restrictive option available, and that that the deprivation of liberty it
entails is necessary and proportionate;
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Mental Capacity Law Guidance Note: the Re X process
c. If the care plan changes during the course of the “review period,” such that the restrictions on P
materially increase, the applicant must bring the matter back to court (before the changes are
made save in the care of urgent necessity).
10. It is further extremely important to note that, by contrast with the process of seeking an authorisation
under Schedule A1 to the MCA 2005, there is much less room for “negotiation” as between the judges
and the applicant as regards the assessment and provision of information. There is no equivalent, for
instance, of a judicial best interests assessor able to conduct a process of investigation to determine
whether the proposed application should be granted. This means both that the onus is very firmly
indeed on the applicant to set out the circumstances:
a. fully – because they will have only limited opportunity to supplement it later whilst remaining
within the scope of the process; and
b. frankly, because the evidence from the applicant will be the only evidence before the court if it
grants the order sought within the scope of the process.
The applicant
11. It is clear that the new form is predicated upon the application being made by the relevant local
authority or NHS body, 1 and we suggest that in the majority of cases it is appropriate to place the onus
on the relevant state body because they are responsible for the care plan that gives rise to the
deprivation of liberty, and will also have better access to the evidence required to support the
application. However, there is no specific requirement in the form to provide that the application has
to be made by the public authority, such that it would be possible for an application to be made (for
instance) by the agency commissioned to implement the care plan at the placement.
Fees and funding
12. The prospect of separate applications, and presumably therefore separate fees (£400 application fee;
£500 hearings fee), for each P will be a matter of some concern to public authorities. The availability of
judicial detention on the papers in non-trigger cases may be of some reassurance to them but not to P.
In terms of legal aid, at present judicial detention is means-tested, administrative detention is not. And
no oral hearing means no entitlement to legal aid in any event beyond the very limited provisions of
legal help. The cost and funding of court reviews will also require clarification in due course.
1
See, for instance, the “General Information” accompanying the form, where reference is made to the applicant public
authority.”
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Mental Capacity Law Guidance Note: the Re X process
Evidence
13. The Practice Direction makes clear that:
a. Evidence is required both as to the individual’s lack of capacity in the material regards AND as to
their unsoundness of mind. It is very important to emphasise that this is different to the
position that prevails in other forms of application to the Court of Protection. It is also very
important to emphasise that the evidence as to unsoundness of mind has to come from a
registered medical practitioner or psychiatrist, and that evidence from a social worker or other
non-medical practitioner listed in the notes to the COP3 form will not be accepted;
b. Evidence as to best interests can usually be provided by the allocated social worker if they have
the relevant skill and knowledge (and if one has been allocated – which may well not be the
case if the care plan has been commissioned by a CCG), but that if one or more of the “trigger
factors” apply, the evidence should be provided by someone else (although that person may still
be employed by the public authority). If one of the “trigger factors” properly does apply, then
we note that, in fact, the matter should be diverted from the Re X process and listed for an oral
hearing. Perhaps the better way to look at this is where the case is on the borderline, the
applicant public authority would be well advised to obtain evidence from as independent a
source as possible. Even if, in fact, the case does not qualify for Re X process, this will minimise
the need for calling upon independent expert evidence in the course of proceedings;
c. Although a separate application must be made for each order (attracting separate application
fees), where there are matters in relation to which the facts are identical for a number of
individuals, such as common care arrangements, the applicant may, in addition to addressing the
specific issues relating to each individual, attach a generic statement dealing with the common care
arrangements or other matters common to those individuals. This will provide the opportunity to
save at least some costs in relation to applications made for orders in relation to a number of
individuals subject to similar care arrangements in a particular location.
14. Neither the form nor the Practice Direction provides details as to the evidence required to satisfy the
court that P is over the age of 16 (NB – not 18 as would be the case in relation to an authorisation
under Schedule A1 in a care home/hospital). We would anticipate that stating P’s date of birth
would ordinarily suffice. If in doubt, of course check their birth certificate. If there is doubt and no
papers – for example in the case of a paperless asylum seeker – a Merton-compliant age assessment
may be required (see B v London Borough of Merton [2003] EWHC 1689 (Admin)).
Consultation with P and P’s participation
15. Annex C to the DOL Form sets out in some detail what is required by way of consultation with P. This
is absolutely vital because an ex parte (i.e. one-sided) process such as that currently set up depends
very significantly upon proper steps being taken by the applicant to ensure that P (and those close to P)
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Mental Capacity Law Guidance Note: the Re X process
are properly consulted.
16. As the process stands, it does not directly engage with the second judgment, in which the President
expressed the view that, if P is not to be a party, “P will typically need some form of representation,
professional though not always legal” (paragraph 14).
As matters stand, therefore, it is not a
requirement for an application to be made under this process that P is represented (for instance by an
IMCA). At the very least, however, we would suggest that in any application on the borderline of
suitability for the process, consideration is given to ensuring that the evidence includes a report from
an advocate.
Reconsideration and appeals
17. It is very important to note that orders made under the Re X process can – if they follow the model
order – be made the subject of an application for reconsideration at any time and by any person
properly interested in P’s welfare. In other words, the normal position under Rule 89 is substantially
varied, reinforcing the policy that challenges to Re X orders will be way of reconsideration in the first
instance, rather by way of appeal.
18. An application for reconsideration can therefore be seen in some ways as the functional equivalent of
an application under s.21A MCA 2005 in relation to an authorisation granted under Schedule A1,
although there is, of course, the major difference that an application under s.21A MCA 2005 attracts
non-means-tested legal aid whereas an application for reconsideration will not. This anomaly speaks
for itself.
Reviews
19. As matters stand, the model order provides for a maximum period of a year before a review is required.
Unless any party requests an oral hearing or the Court decides that one is necessary, the review will be
on the papers. It is anticipated that a replacement form and/or Practice Direction and undoubtedly
new Rules will be in place by the time that the first reviews start being conducted, but the default
position is that the application for a review will be made on a COP DOL 10 form.
Contact details
20. The Court of Protection has set up a dedicated team to deal with applications made under the Re X
procedure. The contact details are:
Court of Protection
P.O. Box 70185
London
WC1A 9JA
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Mental Capacity Law Guidance Note: the Re X process
DX 160013 Kingsway 7
Tel: 0207 421 8665
Email: COPDOLS/S16@hmcts.gsi.gov.uk
21. Note that the telephone and email contact details above are for enquiries relating to the Re X
procedure only. If you need to contact the Court of Protection for any other reason, use the general
enquiry number and email:
Tel: 0300 456 4600
Email: courtofprotectionenquiries@hmcts.gsi.gov.uk
C: Next steps
22. The Re X process in the form of the PD and the form has been introduced on a trial basis, and HMCTS
intend to review the process once it has been up and running for a while, and would be grateful for any
feedback on how it works in practice. Comments can be emailed to the DoL Team:
COPDOLS/S16@hmcts.gsi.gov.uk.
23. As noted at the outset, there will be a third judgment forthcoming in due course which will answer a
number of specific jurisdictional questions as to the Court’s powers to extend urgent authorisations.
24. As the President made clear in his judgment, there is much work to be done by the ad hoc Rules
Committee convened to review the Court of Protection Rules; we will disseminate news of the
Committee’s work as soon as we are able. We will also disseminate news of any appeal to the Court of
Appeal.
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Mental Capacity Law Guidance Note: the Re X process
D: Useful resources
25. In addition to our own website (www.copcasesonline.com) and Alex’s website (www.mclap.org.uk, which
has a dedicated page relating to Cheshire West resources), other useful materials relating to the Cheshire
include:
1. Official guidance
•
Department of Health Guidance on the obligations of local authorities following the decision in
Cheshire West (28 March 2014)
•
Department of Health Guidance on reducing the use of restrictive practices inter alia in health
care settings issued by Department of Health (April 2014)
•
CQC briefing for providers in health and social care settings (updated late April 2014)
•
Adass Advice Note: Guidance for Local Authorities in the light of the Supreme Court decisions
on deprivation of liberty (April 2014).
•
Note that further guidance as to the circumstances which may amount to a deprivation of
liberty in different settings will be forthcoming in February 2015.
2. Commentary: guidance notes
•
Deprivation of liberty after Cheshire West: this guidance note, sets out the key questions for
social workers and medical practitioners to ask following the judgment of the Supreme Court in
Cheshire West (March 2014).
3. Commentary: webinars
•
P, P and Q: The key to the gilded cage - a video featuring Jenni Richards QC, Fenella Morris QC,
Nicola Greaney and Ben Tankel, all of Thirty Nine Essex Street (March 2014)
4. Commentary: practice-focused
•
Deprivation of liberty in the hospital setting: a paper that by Alex and Catherine Dobson, which
considers the law relating to deprivation of liberty in the hospital setting,
including discussions of what constitutes a deprivation of liberty after Cheshire West, what it
takes to have capacity to consent to such a deprivation of liberty, and whether the MCA 2005
or the MHA 1983 will apply (April 2014)
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