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A New Streamlined Approach For Dealing With Deprivation Of Liberty In The Wake Of Cheshire West?

Jane Zacharzewski

Jane Zacharzewski, Community Care Law Caseworker

Yesterday, the President of the Court of Protection, Sir James Munby, handed down his long awaited preliminary judgment on Deprivation of Liberty Safeguards (DoLS) cases. This is an unusual judgment because rather than deciding an individual case or cases, the hearing in June brought together lawyers representing the Law Society, the Official Solicitor, local authorities, charities and individuals to assist the Court in developing a common-sense way of dealing with what is likely to be a huge increase in DoLS applications following the recent Supreme Court judgment in the Cheshire West case, and the House of Lords report, which my colleague Cate Searle blogged about.

The full judgment can be downloaded here. It aims to set out a framework for developing a process which is both “streamlined” and compliant with the individual’s Article 5 right to liberty. The main points can be summarised as:

  • Any authorisation of a DoL must be made by a judge not an officer of the Court
  • The Court may consider the authorisation without the need for an oral hearing, providing that a comprehensive set of information is provided and a robust process followed
  • The process will be “frontloaded” with information including medical evidence relating to the individual’s capacity, care or treatment plans and documents confirming that a proper Best Interests process has been followed, to be provided by the applicant
  • Where the person lacking capacity objects to the DoLS authorisation, or matters are disputed, or the Court otherwise thinks it is necessary, there should be an oral hearing
  • There should be a right to request a speedy review at an oral hearing
  • The person lacking capacity should be enabled to participate in the proceedings but this does not necessarily mean that they should be joined as a party
  • The Authorisation should regularly be reviewed, usually annually, but more frequently if the circumstances require it
  • This review must also be “judicial” and an oral hearing may not be required

The President set out to answer most of the 25 questions developed at an earlier hearing in May. Additional points will follow in a further judgment “in due course”.

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