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President sets out CoP process for deprivation of liberty cases

Procedure needed to meet expected ten-fold increase in DoL cases

The President has carried out a review of the processes by which the Court of Protection reviews deprivation of liberty (DoL) cases.

In Re X and others (Deprivation of Liberty) [2014] EWCOP 25, the President, Sir James Munby, was concerned with the practical and procedural implications of the Supreme Court's decision in Surrey County Council v P and others (Equality and Human Rights Commission and others intervening), Cheshire West and Chester Council v P and another (Same intervening) [2014] UKSC 19. The Association of Directors of Adult services had advised the President in X that a survey of local authority adult social care departments indicated that the number of DoL referrals from hospital and residential settings to rise from 10,050 in 2013/14 to 93,900 in 2014/15.

The President's immediate objective was to devise, if feasible, a standardised and 'streamlined', process, compatible with all the requirements of Article 5, which would enable the Court of Protection to deal with all DoL cases in a timely but just and fair way.

The President determined that any authorisation of a DoL by the Court of Protection must be by a judge, not a court officer. In certain cases the initial determination can be made on the papers, so long as there is an unimpeded right to request a speedy review at an oral hearing. The President identified 'triggers' which would indicate the need for an oral hearing. Where a DoL has been authorised by the Court, there would need to be a review by a judge 'approximately annually', unless circumstances require a shorter period. Such review would not require an oral hearing in every case.

Since the Court of Protection does not have a statutory rules committee (akin to the Family Procedure Rules Committee), an ad hoc, non-statutory, committee has recently been set up to review the Court of Protection Rules 2007 and associated practice directions and forms. At its first meeting the Committee identified as a major issue for consideration  the question of whether Rule 73(4) of the COPR, which provides that "Unless the court otherwise orders, P shall not be named as a respondent to any proceedings", requires amendment.

A further judgment will follow in due course, elaborating the President's reasons for the decisions given in X.

The judgment in X is here.