6.3 Deprivation of Liberty: Court of Protection Procedure

1. Background

The Court of Protection (CoP) has adopted a procedure for cases where a deprivation of liberty needs to be authorised in order to provide care for an adult somewhere other than a care home or hospital. The procedure means that uncontentious cases can be decided by a judge without a court hearing.

In the Cheshire West case in 2014, the Supreme Court ruled that adults who lack capacity to make decisions about their own care are deprived of their liberty if their care plan means that they are subject to “continuous supervision and control” and are “not free to leave”.

Depriving someone of their liberty, even in their best interests, is unlawful unless it has been properly authorised via a legal process. For people in hospitals and care homes this can usually be done using the Deprivation of Liberty Safeguards system in the Mental Capacity Act 2005. Elsewhere, e.g. in Supported living schemes, it has to be authorised by the CoP.

To cope with the greater number of applications after the Cheshire West judgment, the CoP reviewed how it manages these cases and issued instructions (known as Practice Direction 10AA) setting out new rules for making an application for an authorisation to deprive an adult (16+) of their liberty.

The procedure is based on a standard application form (Form COP DOL10) which must be used in all cases. The form is designed to give the court all the evidence it needs at the outset, so that in uncontentious cases a judge can make a decision “on the papers” i.e. without a full court hearing. The Court is calling this the “streamlined procedure” and the intention is that it will allow straightforward cases to be dealt with more quickly and more efficiently.

Ultimately, it is care providers and their staff who are breaking the law if they deprive people of their liberty without the proper authorisation but, in practice, the application to the Court for an authorisation is often made by the local authority or NHS body arranging the person’s care. Even so, care providers are involved in making sure the right information is included and that the right people have been consulted before the application is made.

2. Considerations Before Making the Application to the Court of Protection

The following steps are likely to be needed in most social care cases before an application to the CoP is made.

• A Care Act assessment for the person concerned, including, where applicable, an analysis of risk and risk management plan.
• If the person has ‘significant difficulty’ in participating in the Care Act assessment, an ‘appropriate individual’ should be identified to represent them.
• Consideration of relevant advocacy (including Care Act advocate if no appropriate person can be found to assist the individual in a Care Act assessment).
• Clarity regarding which decisions are needed, who can make them, which options are available and will be funded, and ensure that there is a best interests decision.
• Is there also a need to agree a tenancy agreement for a person who lacks the mental capacity to do so and has no-one legally appointed to act for them? Tenancy issues can also be raised during applications to authorise deprivation of liberty and there will be a benefit to the person and to the process by ensuring such requests are co-ordinated.

Many acts of care can be delivered and many actions taken by reliance on Section 5 of the Mental Capacity Act (MCA) where the person lacks mental capacity and the action is in their best interests. Note that Section 6 MCA limits the use of restraint and specifies that it must be necessary to protect the person from harm and be a proportionate response to the likelihood and seriousness of the harm.

In an emergency, a person may be deprived of their liberty by reliance on Section 4B MCA if it is necessary in order to give the person life-sustaining treatment or carry out vital acts (i.e. acts reasonably believed to be necessary to prevent a serious deterioration in the person’s condition). This can only be done after, or at the same time as an application is made to the Court of Protection.

3. Application to the Court of Protection for a Deprivation of Liberty Authorisation

The first part of Form COP DOL10 mainly asks for details about the applicant and the person to whom the application relates, as well as a draft of the order which the applicant wants the court to make authorising the deprivation of liberty. (See Appendix 3- Model Re X Order)

There are then three Annexes that need to be completed:

Annex A asks for an explanation of why the proposed care-plan involves a deprivation of the liberty, why it is necessary and in the person’s best interests, and why it is the least restrictive option available.

The form also has to explain how the deprivation of liberty is “imputable to the state”, meaning how state agencies (like the NHS or a local authority) are involved in the arrangements.

Annex A can be completed by the person’s “allocated social worker”, however in cases which are likely to be contentious, it should be completed by someone more independent e.g.  a local authority Best Interests Assessor (BIA).

There are various trigger factors that might make the case contentious or not straightforward, such as where there is a dispute about any of the facts (e.g. whether the person lacks capacity), where the person concerned, or anyone else, objects to what is being proposed, or where it hasn’t been possible to consult the people who ought to have been consulted.

The evidence in the form is expected to be “succinct and focussed”. The Court has stressed that people completing the forms have a duty of “full and frank disclosure”. As well as explaining why they think the application should be granted, they must also point out any difficult issues the judge might want to look at especially closely and any evidence that suggests that what is proposed in the application is not the right course of action.

Annex B mainly asks for confirmation that other people have been consulted according to the normal rules in the MCA about best interest decisions. The person who completes this part of the form must summarise the views of the people who have been consulted (if necessary attaching separate statements). They must also list other people who could have been consulted, but who have not been, e.g. other relatives, friends and carers who might have views on the application.

Annex C asks for confirmation that the person to whom the application relates has also been consulted about the application and what it means for them, and has been told about their rights, including the right to ask to take a direct part in the Court’s decision-making.

This should preferably be done by someone who knows the person and is able to express their views. This could be a relative or friend, for example, or someone the person has previously chosen to act on their behalf (e.g. someone they have given a lasting power of attorney).

Whoever completes Annex C must record the person’s views, wishes, and feelings about the application, and whether they have said they would like to make their views known directly to the court and, if so, whether they want to formally become a party to the case.

If the person concerned objects to the application, the court will probably order a hearing, rather than making a decision on the papers.

Every question on the forms should be completed, or stated that information is not available. Failure to provide the information required by the court could lead to unnecessary delays to proceedings.

You must also supply:

• COP3 Assessment of capacity
• Mental Health Assessment
• A copy of any Advance Decision
• A copy of any Lasting Power of Attorney (LPA)
• Any relevant Court orders
• Care and Support Plan
• Best Interests Assessment
• The application fee.

If the Care and Support Plan or Best Interests Assessment references any other documents, then copies of those other documents must be provided

Once the Court receives a completed application form (and the necessary application fees have been paid), a judge will then decide if it is suitable for the streamlined procedure. If it is, a judge will then go on to decide whether to issue the authorisation requested. If it isn’t suitable for the streamlined procedure the judge will order an oral hearing so the issues can be examined more fully.

If the Court authorises a deprivation of liberty, it will also set out when and how when further applications need to be made for it to be reviewed. Usually an authorisation will need to be reviewed at least annually.

4. Further Information and Guidance

Form COP DOL10: Apply to authorise a deprivation of liberty

The Re: X process involves extensive consultation with the carers, friends, and families of the person who may be deprived of their liberty, as well as the person themself. This may cause anxiety due to references to Courts, solicitors, witness statements etc. especially as the person may be have been settled in their care placement for many years without the need for CoP authorisation. A separate document has been produced to help provide an explanation of the process to other parties.

Part 2 of the Practice Direction provides a more detailed description of the procedure and is included as Appendix 1.

The form COP DOL10 also includes a checklist to ensure that all necessary information is included with the application, and a copy of the checklist is included as Appendix 2.

The Court of Protection Handbook contains a Model Court Order and all other necessary information and forms. A copy of the model order is included as Appendix 3.

FAQs: Current questions extracted from 39 Essex Street Guidance are included as Appendix 4.

We have developed our own versions of two of the standard DoLS forms so that they may be used for applications to the Court of Protection:

• Application form based on the standard DoLS Form 1 and a copy is attached as Form 1(x) (Appendix 5).
• Mental Health Assessment record form based on the standard DoLS Form 4 and a copy is attached as Form 4(x) (Appendix 6).

5. Procedure to Follow: Introduction

All CMBC employees who are involved in this procedure must be familiar with the principles of the Mental Capacity Act (MCA) 2005 and the MCA Code of Practice.

In short, the MCA 2005 is intended to make sure that if a decision is made on behalf of someone who lacks the mental capacity to make it, then it should as far as possible reflect what they would decide themself if they were able to do so.

The MCA enshrined in statute, current best practice and common law principles concerning people who lack mental capacity and those who take decisions on their behalf.

When a person who lacks the mental capacity to make decisions about their care arrangements moves from their home into a residential setting it is important that the professionals involved are aware that decisions they make on the person’s behalf may be subject to scrutiny in the future. This may include the need to justify a decision in the Court of Protection.

It is important that people have had, and continue to have, every opportunity to explore less restrictive options, such as sheltered accommodation or return home / remain at home. It is important that this is thoroughly recorded in case notes and assessments e.g., why can’t the person be at home or why is re-housing not an option?

If the person’s wishes and feelings are that they should return home then the Court wants to see why the authorisation of deprivation of liberty (in short; being moved into care) is absolutely the only option left and that there was nothing else available when the placement was made, and that attempts have continued to enable the least restrictive options to be explored.

The CoP seems to be taking the view that the incapacitous person’s preferences should be the default position, not best interests decisions which merely take them into account. The court may accept a best interests decision over-riding the person’s preferences, but in order to do so we have to thoroughly evidence that we’ve done all we can to respect the wishes and feelings of the person who has not got the mental capacity to make the decision themselves.

When an application is made to the CoP for authorisation of a deprivation of liberty the Court will require supporting evidence as well as the application form (COP DOL10). If professionals are aware in advance of the sort of records that may be required by the Court in the future this is not only good practice but will also help to avoid problems when preparing the application.

6. Identifying a Deprivation of Liberty in the Community

Procedure	Task Allocation
Currently the best guidance on identifying deprivation of liberty in the community is provided by the Law Society in ‘Identifying a Deprivation of Liberty a Practical Guide (The Law Society) ’ The extract below lists some of the key factors that may contribute to a deprivation of liberty in these environments.	All to note
Supported living: Decision on where to live being taken by others; Decision on contact with others not being taken by the individual; Doors of the property locked, and/or chained, and/or bolted for security reasons or to prevent residents leaving; Access to the community being limited by staff availability; A member or members of staff accompanying a resident to access the community to support and meet their care needs; Mechanical restraint, such as wheelchairs with a lap strap or harness (e.g. Crelling), reinforced glass in mobility vehicles, protective helmets; Varying levels of staffing and frequency of observation by staff; Restricted access to finances, with money being controlled by staff or welfare benefits appointee; Restricted access to personal items to prevent harm; Restricted access to parts of the property, such as the kitchen or certain cupboards therein, to minimise health and safety risks; Chemical restraint, such as medication with a sedative or tranquilising effect; Physical restraint/intervention, such as with personal care tasks, breakaway or block techniques, distraction methods, staff withdrawing, physical touches or holds; Restricted access to modes of social communication, such as internet, landline or mobile telephone, correspondence; Positive behavioural reward systems, to reward “good” behaviour; Restricted access to family, depending on level of risk and availability of staff and resources; Lack of flexibility, in terms of having activities timetabled, set meal times, expected sleep times.
Shared lives: Varying levels of supervision and guidance with activities of daily living; Encouraging participation in family and community activities; Preventing the person from leaving unaccompanied for their immediate safety; Ensuring behavioural boundaries; Conveying the person to health and other appointments; Addressing challenging behaviour; Assist with medication, including sedative effect.
A person’s own home The prescription and administration of medication to control the individual’s behaviour, including on a PRN basis; The provision of physical support with the majority of aspects of daily living, especially where that support is provided according to a timetable set not by the individual but by others; The use of real-time monitoring within the home environment (for instance by use of CCTV or other technology enabled care); The regular use of restraint by family members or professional carers which should always be recorded in the individual’s care plan; The door being locked, and where the individual does not have the key (or the number to a key pad) and is unable to come and go as they please, strongly suggests that they are not free to leave; The individual regularly being locked in their room (or in an area of the house) or otherwise prevented from moving freely about the house.

7. Referral to the Funding Body

Procedure	Task Allocation
Normally, requests for deprivation of liberty authorisation by the CoP will arrive in a similar way to DoLS requests from care homes and hospitals i.e. care providers will complete an authorisation request form (Form 1) and email / fax it to the MCA / DoLS inbox. We have developed a special form for applications for authorisation by the Court of Protection and it is entitled Form 1(x). See Appendix 5	Care provider / Managing Authority
The application is then forwarded to the MCA Team where it will be logged onto the Management Spreadsheet and the correct funding body identified.	Admin
Cases that are funded by NHS Continuing Health Care (CHC) will be forwarded to the Designated Nurse for Safeguarding Adults.	MCA Team
Cases where the Local Authority is involved in the funding will be allocated to a case worker for further action.	MCA Team
Anyone may consider that care arrangements for someone in the community involve restrictions that meet the acid test if the person does not have the mental capacity to consent to them. If this matter is raised with the care provider then they should make a referral to the LA or Integrated Care Board (ICB).	All to note
However, if the LA becomes aware of such a situation then it has a positive obligation to protect the person’s human rights and initiate the authorisation process itself.

8. Allocation of Cases for Application to Court of Protection

Procedure	Task Allocation
Applications received from Supported Living / Shared Lives providers will be allocated by the MCA Team to a social worker who will complete the COP DOL10 application form and submit it to the Adult Care Legal Team.	MCA Team
Liaison with the Legal Team will continue until all the necessary documentation is completed and ready for the Court.	MCA Team / Legal
Applications for authorisation of deprivation of liberty in a person’s own home will normally be prioritised and initiated by the area social work teams.	Area Team
Social Workers may also bring cases to the weekly MCA Clinic for advice regarding the necessity of the application and /or prioritisation of the case.	Area Team
The MCA Team will advise on how to proceed with the application.	MCA Team

9. Mental Capacity Assessment

Procedure	Task Allocation
The Mental Capacity Assessment must be recorded on a COP 3 Form	Allocated worker

10. Mental Health Assessment

Procedure	Task Allocation
If the Mental Capacity Assessment concludes that person lacks the mental capacity to consent to care arrangements then the applicant completes first part (person’s details) of the Mental Health Assessment Record Form (Form 4(x)) and sends it to MCA Admin Team who will arrange MH assessment by a medical practitioner. (Form 4(X) attached as Appendix 6)	Allocated worker / Admin / s.12 Doctor / GP

11. Triggers that Indicate the Case is not Suitable for Re: X Procedure

Procedure	Task Allocation
Any contest by the person the application is about or by anyone else to any of the matters listed below: Confirmation that the person is 16 years old or more and is not ineligible to be deprived of liberty under the 2005 Act The relevant medical evidence stating the basis upon which it is said that the person suffers from unsoundness of mind The relevant medical evidence stating the basis upon which it is said that the person lacks the capacity to consent to the care arrangements The person’s care plan The nature of the person’s care arrangements stated in the care plan and why it is said that they do or may amount to a deprivation of liberty The basis upon which it is said that the arrangements are or may be imputable to the state The best interests assessment.	All to note
Any failure to comply with any of the requirements to take steps to consult the person and all other relevant people in the person’s life (who should be identified).
Any concerns arising out of information supplied in accordance with: Any relevant wishes and feelings expressed by the person and any views expressed by any other relevant person Anyone who might act as a litigation friend for the person to whom the application relates 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: needing particular judicial scrutiny; or suggesting that the arrangements may not in fact be in the person’s best interests or be the least restrictive option; or otherwise indicating that the order sought should not be made.
Any objection by the person this application is about.
Any potential conflict with any decision of the kind referred to in any relevant advance decision by the person and any relevant decisions under a lasting power of attorney or by the person’s deputy (who should be identified).
If for any other reason the court thinks that an oral hearing is necessary or appropriate.

12. Requests for Legal Advice

Procedure	Task Allocation
When the first draft of the COP DOL10 form (see below) has been completed, the applicant should liaise with the Legal Team to discuss further stages in the process, or for any other guidance.	Allocated worker
The Legal Team will need the personal details of the relevant person
The Legal Team will also need to be informed of the financial ledger code in order that the Court fee may be paid.

13. Completing the Application Form (COP DOL10)

Procedure	Task Allocation
Information required. Social workers  should ensure that within the CoP forms (or by way of a separate document, if necessary) the following information is included (if applicable): If the proposed placement has not yet taken place, information about any transition plan. If the person is already living at the placement, the date they moved there, where they lived before, why the move took place, and how the move was working. Any recent change or planned change in the care package and the reasons for the change. An explanation as to why any identified sedation or restraint are or may be used, and why they are the least restrictive measures to deal with the relevant issues. Information as to any tenancy agreement, and who has the authority or needs to apply for the authority to sign it on the person’s behalf. Confirmation that the CoP application is not controversial i.e. there are no disputes from family / professionals as to the best interests of the person. Information regarding the participation of family and friends over the years, the nature of the care they have provided, their approach to issues relating to its provision in the past, and the reasons why it is thought that they will provide objective and balanced support for the person  in his / her best interests. Obtain views from family and friends as to why they support the care package and set these out individually. Consult with the family and friends as to their willingness to act as a litigation friend/Rule 1.2 representative for the person and ascertain their ability to (if appointed) to keep the person’s care package under review. As a bare minimum, any litigation friend/Rule 1.2 Representative would be required to have regular contact with the person and would be required to provide a written statement to the court prior to each 12 month review with reference to the history of the person’s care. They would be expected to highlight any concerns to professionals regarding the person’s best interests. Information regarding other options which have been considered for the person and why the current care package (or proposed care package) has been chosen as the appropriate one. Highlight any conflicting interests e.g. between different adults / residents within the current / proposed placement. Provide an analysis of and reasons for any restrictive practices – these should be in the form of care records and care plans. A short statement from the person’s carers, or a record of the views of the person’s carers. Information regarding any relevant advance decision. Details of any Lasting Power of Attorney or Court Appointed Deputy. Information regarding any previous DoLS authorisation	Allocated worker
Responsibilities for completing the COP DOL10 Form
Page 1: Full name of the relevant person Section 1: Statement for reasons of urgency. Normally left blank. Legal Team must be informed if there are any special reasons for urgency to be detailed here	Allocated worker
Section 2, 3 and 4 Completed by Legal Team	Legal Team
Section 5 and 6: Personal details of the relevant person.	Allocated worker
Annex A: Evidence that the person is deprived of their liberty (i.e. lacks mental capacity to care arrangements, is not free to leave, and is under continuous supervision and control) Evidence that the deprivation of liberty is: In their best interests, Least restrictive, Necessary, Proportionate. Other options have been considered Risks have been assessed Any other information is provided as necessary (see section 11??) Annex B: Evidence of consultation with other people IMCA involvement Identify litigation friend Annex C: Evidence of consultation with the person who the application is about IMCA involvement
You must also supply: COP3 Assessment of capacity Mental Health Assessment a copy of any Advance Decision a copy of any Lasting Power of Attorney (LPA) any relevant Court orders Care Plan Best Interest Assessment the application fee	Allocated worker / medical practitioner

14. Supporting Documentation

Procedure

Task Allocation

The following documents will be required to accompany the COP DOL10 that will be sent to the Court to support an application for an authorisation of deprivation of liberty. Mental capacity assessment about the decision to be made (usually where the person will live for the purposes of being provided with care and treatment). The assessment must evidence what steps were taken to enable the person to make the decision including presenting the person with the options available. If already in a placement, the assessment needed will be the one made preparatory to the move. Record of the initial best interests decision stating why the person moved into the care setting. This must evidence how it was the least restrictive option available, what other options were considered and ruled out and why. Will also include opinions of people who know the person, including care staff where appropriate. Copies of CMBC support plans. Care plans from the provider. Diary sheets are not needed, but pretty much everything else is. The court will want to see what is being done to enable the person to be at liberty, what social activities enable the person to access community etc. Everything needs to be accounted for; if there is a pressure sensor mat in the person’s, why is it there? Could it be avoided (is it an invasion of the person’s privacy)? If there are locked doors, why are they locked? Every bit of intervention where the person is not the decision maker needs to be justified and it needs to comply with MCA Principles 4 and 5. [See also notes 1 and 2 below regarding care plans] Risk assessments for these interventions (e.g. locked doors) from the provider and from CMBC where appropriate. Records of any previous DoLS assessments and authorisations. Records of case notes from CIS dating back to when the placement was made. These may need to be redacted, the Legal Team will advise. Contact name(s) and details of next of kin. IMCA reports where appropriate Medication records and, where there is a query about the necessity of the medication, a statement from the prescribing clinician as to why it is still prescribed. Any previous CoP Court Orders (including Finance Orders) Copies of any LPA (including Finance LPAs) Note 1: If a care plan references any other documents then they should also be provided. Note 2: “A care plan is more than a statement of strategic objectives – though all too often even these are expressed in the most vacuous terms. A care plan is – or ought to be – a detailed operational plan. Just how detailed will depend upon the circumstances of the particular case. Sometimes a very high level of detail will be essential. But whatever the level of detail which the individual case may call for, any care plan worth its name ought to set out the operational objectives with sufficient detail – including detail of the ‘how, who, what and when’ – to enable the care plan itself to be used as a means of checking whether or not those objectives are being met…” (Extract from Munby J’s judgment in R –v- Caerphilly County Borough Council [2005] EWHC 586 (Admin))

All to note

Appendix 1: Extract from Practice Direction 10AA

PART 2 – APPLICATIONS UNDER SECTION 16(2)(a) FOR AN ORDER AUTHORISING DEPRIVATION OF LIBERTY UNDER SECTION 4A(3) AND (4) PURSUANT TO A STREAMLINED PROCEDURE

27. This Part sets out the procedure to be followed in applications to the court under section 16(2)(a) to authorise deprivation of liberty under section 4A(3) of the Act pursuant to a streamlined procedure and applies only to such applications. Reference should be made generally to the decision of the Supreme Court in P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and another; P and Q (by their litigation friend the Official Solicitor) v Surrey County Council [2014] UKSC 19, and in relation to the procedure in these cases, to the judgments of the President of the Court of Protection in Re X and others (Deprivation of Liberty) [2014] EWCOP 25 and in Re X and others (Deprivation of Liberty) (Number 2) [2014] EWCOP 37.

Making the application

28. To bring proceedings, the applicant must file an application using form COPDOL 10, verified by a statement of truth and accompanied by all attachments and evidence required by that form and its annexes.
29. The application form and accompanying annexes and attachments are specifically designed to ensure that the applicant provides the court with essential information and evidence as to the proposed measures, on the basis of which the court may adjudicate as to the appropriateness of authorising a deprivation of liberty, and in particular to identify whether a case is suitable for consideration without an oral hearing. The use of the form and its annexes is mandatory and they must be provided fully completed and verified by the required statements of truth.
30. The applicant must ensure that the evidence in the application form, accompanying annexes and attachments is succinct and focussed.
31. A separate application must be made for every individual for whom the applicant requests an authorisation of deprivation of liberty. However, 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.

Deponent

32. The applicant must consider carefully who should complete the form and each annex with regard to the nature of the evidence required by each. There is no requirement that the same individual should complete and verify by statement of truth the form and each annex and indeed it might be inappropriate for this to be the case, where different people are best placed to provide evidence on different matters.

Applicant’s duty of full and frank disclosure

33. The applicant has a duty of full and frank disclosure to the court of all facts and matters that may have an impact on the court’s decision whether to authorise the deprivation of liberty. The applicant should therefore scrutinise the circumstances of the case and clearly identify in the evidence in support (in Annex A to form COP DOL10) factors:
    • needing particular judicial scrutiny;
    • suggesting that the arrangements in relation to which authorisation is sought may not in fact be in the best interests of the person the application is about, or the least restrictive option; or
    • otherwise tending to indicate that the order should not be made.

Pursuant to this duty, the applicant should also identify those persons, not consulted by the applicant, who are in the same category under paragraph 39 as persons with whom the applicant has consulted. Those persons must be listed in Annex B to form COPDOL 10 together with an explanation in that Annex of why they have not been consulted.

 Draft order

34. The application must be accompanied by a draft of the order which the applicant seeks, including the duration of the authorisation sought, appropriate directions for review, and liberty to apply for its reconsideration.

 Consultation with the person the application is about

35. Consultation with the person the application is about must take place before the application form is lodged with the court. The applicant must arrange for that person to be informed of the following matters—
    • that the applicant is making an application to court;
    • that the application is to consider whether the person lacks capacity to make decisions in relation to their residence and care, and whether to authorise a deprivation of their liberty in connection with the arrangements set out in the care plan;
    • what the proposed arrangements under the order sought are;
    • that the person is entitled to express their views, wishes and feelings in relation to the proposed arrangements and the application, and that the person undertaking the consultation will ensure that these are communicated to the court;
    • that the person is entitled to seek to take part in the proceedings by being joined as a party or otherwise, what that means, and that the person undertaking the consultation will ensure that any such request is communicated to the court;
    • that the person undertaking the consultation can help them to obtain advice and assistance if he or she does not agree with the proposed arrangements in the application.
36. The person undertaking the consultation must complete Annex C to form COP DOL10.
37. The applicant must confirm that the person the application is about has been supported and assisted to express their views, wishes and feelings in relation to the application and the arrangements proposed in it, and encouraged to take part in the proceedings to the extent that he or she wishes, in accordance with section 4(4) of the Act.

Consultation with other persons regarding the making of the application

38. The consultation required by paragraph 39 below must take place before the application is lodged with the court.
39. The applicant must ensure that the following people are consulted about the intention to make the application—
    • any donee of a lasting power of attorney granted by the person;
    • any deputy appointed for the person by the court;
    • together with, if possible, at least three people in the following categories:
      • anyone named by the person the application is about as someone to be consulted on the matters raised by the application; and
      • anyone engaged in caring for the person or interested in their welfare.
40. When consulting such people, the applicant must inform them of the following matters:
    • that the applicant is making an application to court;
    • that the application is to consider whether the person the application is about lacks capacity to make decisions in relation to their residence and care and whether he or she should be deprived of liberty in connection with the arrangements set out in the care plan;
    • what the proposed arrangements under the order are; and
    • that the applicant is under an obligation to inform the person the application is about of the matters listed in paragraph 35 above, unless in the circumstances it is inappropriate for the applicant to give that person such information.

Dispensing with notification or service of the application form

41. Provided that the court is satisfied as to the adequacy of consultation with the person the application is about in accordance with paragraphs 35 to 37, and with other persons with whom consultation should take place in accordance with paragraphs 38 to 40, the court may dispense with notification of the issue of the application under rules 42, 69 and 70.

Court fees

42. An application fee is payable for all applications, and if the court decides to hold a hearing before making a decision, a hearing fee will be payable.
43. If an application is received without a fee it will be treated as incomplete and returned.

Permission to apply

44. The court’s permission to apply is needed in order to make an application under section 16(2)(a). The application form includes provision to seek permission as part of the main application and applicants should ensure that permission is sought in this manner. The court will address the issue of permission at the time of considering the application. A separate application for permission should not be filed.

Applications suitable for the streamlined procedure

45. As soon as practicable after receipt the court officers will consider the suitability of the application to be the subject of paper determination, or to be considered at an oral hearing.
46. All applications considered suitable for the streamlined procedure will be referred to a judge for consideration without an oral hearing, as soon as practicable after receipt.

Applications not suitable for the streamlined procedure

47. If the judge considers that the application is not suitable for the streamlined process, case management directions shall be given.

Applicant to supply a copy of the order to each person consulted

48. The applicant must provide all persons consulted, including the person the application is about, with a copy of the order made pursuant to the streamlined procedure granting or refusing the authorisation of the deprivation of liberty.

Review of the authorisation

49. An application for a review of the authorisation of the deprivation of liberty must be made in accordance with the terms of the order.

Appendix 2: Application to Authorise a Deprivation of Liberty – Checklist

Your application must answer the following matters, either in the body of the application form or in attached documents.

Failure to provide the information required may result in the case not being suitable for the application to be dealt with under the streamlined process for an authorisation to deprive a person of their liberty under existing or continuing care arrangements.

Information required:

1. Are there any reasons for particular urgency in determining the application?
2. Have you confirmed that ‘P’ (the person the application is about) is 16 years old or more and is not ineligible to be deprived of liberty under the 2005 Act?
3. Have you attached the relevant medical evidence stating the basis upon which it is said that ‘P’ suffers from unsoundness of mind?
4. Have you attached the relevant medical evidence stating the basis upon which it is said that ‘P’ lacks the capacity to consent to the care arrangements?
5. Have you attached a copy of ‘P’s’ care plan?
6. Does the care plan state the nature of ‘P’s’ care arrangements and why it is said that they do or may amount to a deprivation of liberty?
7. Have you stated the basis upon which it is said that the arrangements are or may be imputable to the state?
8. Have you attached a best interests assessment?
9. Have steps been taken to consult ‘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?
10. Have you recorded in Annex B any relevant wishes and feelings expressed by ‘P’ and any views expressed by any relevant person?
11. Have you provided details of any relevant advance decision by ‘P’ and any relevant decisions under a lasting power of attorney or by ‘P’s’ deputy (who should be identified)?
12. Have you identified anyone who might act as a litigation friend for the person to whom the application relates?
13. Have you listed 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:

• • needing particular judicial scrutiny; or
  • suggesting that the arrangements may not in fact be in ‘P’s’ best interests or be the least restrictive option; or
  • otherwise indicating that the order sought should not be

14. Have you enclosed the fee?

The following triggers may indicate that your application is not suitable to be made under the streamlined process and that an oral hearing may be required in the first instance:

1. Any contest by the person the application is about or by anyone else to any of the matters listed at 2 – 8 above
2. Any failure to comply with any of the requirements referred in 9
3. Any concerns arising out of information supplied in accordance with 10, 12 and 13
4. Any objection by the person this application is
5. Any potential conflict with any decision of the kind referred to in 11
6. If for any other reason the court thinks that an oral hearing is necessary or appropriate.

Appendix 3: Model Re X Order

See the Model Re X Order (opens in Word)

Appendix 4: Questions and Some Answers

(Taken from 39 Essex Chambers Guidance)

The judgments (Re X and others (Deprivation of Liberty) [2014] EWCOP 25) raise a number of questions (some of which may be answered by the President himself in due course. We pose here a number which occur to us immediately, together with some tentative answers: we emphasise, however, that specific advice must be sought in respect of particular applications.

Which evidence can be provided in generic form?

It seems to us that, where an application is under consideration for more than one individual, it would be unlikely if generic information could be provided going beyond information as to the nature of the arrangements giving rise to the deprivation of liberty and the fact of state imputability. It is difficult to imagine, for instance, that any generic information could be provided as to capacity or wishes and feelings.

What proof is required that P is over the age of 16?

We suggest that this will be of the same nature as that required to allow the SB to be satisfied that the (higher) age requirement under Schedule A1 is met. 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)).

What evidence is required as to the care arrangements?

We suggest that this evidence should not only address why it is said that the elements of the acid test are met (i.e. that the individual is under continuous supervision and control, and why it is said they are not free to leave) but also expressly set out any physical interventions that are allowed for in the care plan and (if different) that occur in practice.

Can social work evidence suffice to establish P’s unsoundness of mind?

There is a degree of ambiguity in the judgment as to whether every deprivation of liberty application requires (at least) a General Practitioner to confirm the relevant unsoundness of mind, or whether such evidence can be established by a clinician but confirmed by another such as a social worker. This ambiguity will hopefully be clarified in due course, perhaps following further work by the Rules Committee. At present, however, we would suggest erring on the side of caution and – in particular in any case where there could be any doubt – obtaining medical evidence from a clinician. We note that there therefore may well be a difference between ‘standard’ applications to the CoP where a COP3 setting out the basis upon which it is said that the person lacks capacity to take the relevant decision(s)s can be completed by (inter alia) a social worker, and a deprivation of liberty application.

What form of best interests assessment is required?

The ruling does not state in terms who is to carry out the best interests assessment, leaving open the option that it could (for instance) be carried out by the individual’s allocated social worker (if the application is made by a local authority). One of the key safeguards to administrative detention is the fact that the best interests assessor is independent. With judicial detention the judge occupies such independence. However, they are not as ‘on the ground’ and able to liaise with all the key consultees as a best interests assessor. We would suggest, therefore, that although not a legal requirement, best practice – particularly in ‘trigger’ cases – would be to have a best interests assessment carried out by a person other than the allocated social worker so as to ensure the maximum degree of independence. This would also minimise the need for calling upon independent expert evidence in the course of proceedings. If the application is being made by the Integrated Care Board (ICB), then it will be necessary to commission such an assessment, and resourcing implications will no doubt arise.

What happens where P cannot express a view about being joined as a party?

The judgments suggest that in such a case, P does not need to be joined as a party, but this does not alleviate the obligation upon the public body bringing the application to take (and we suggest document taking) appropriate steps to ensure that P has been put in a position not just to express their wishes and feelings generally but specifically about whether they wish to be a party.

What form of representation is required if P is not joined as a party?

In his second judgment, the President amplified his first judgment in respect of the participation of P. In particular, he added the observation that, if P is not to be a party, P will typically need some form of representation, professional though not always legal. He did not provide specifics of the form of representation he had in mind, but an obvious source of such representation would be Independent Mental Capacity Advocates, who are well-versed in ensuring that P’s voice is properly heard in decision-making. This raises an obvious question – falling outside the scope of the judgment – as to the funding and commissioning arrangements in respect of such advocates. We suggest, however, that the application should identify a person/body who is in a position to act as such a representative; if this is to be an IMCA, it is self-evidently the case that the applicant should have consulted with the relevant IMCA organisation to obtain confirmation that this is the position before naming the person/body in the application.

 Fees and funding

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. The cost and funding of court reviews may also require clarification in due course.

Appendix 5: Deprivation of Liberty Form 1(X) – Request for Authorisation by the Court of Protection

Deprivation of Liberty Form 1(X) (opens in Word)

Appendix 6: Deprivation of Liberty Safeguards Form 4(X) – Mental Health Assessment Record Form

Deprivation of Liberty Form 4(X) (opens in Word)