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Deprivation of liberty in the community – how not to apply to court

A recent case reads as an object lesson in how not to make an application to the Court of Protection to authorise deprivation of liberty, writes Alex Ruck Keene.

The frankly astonishing case of LB Barnet v JDO & Ors [2019] EWCOP 47 concerns a young man, JDO, with diagnoses of cerebral palsy, autism, learning disability and epilepsy. He had been living at supported living placement in arrangements amounting to deprivation of liberty. There were ongoing civil proceedings claiming damages for JDO on the basis of clinical negligence. The Official Solicitor acted as JDO’s litigation friend in those proceedings. In June 2017, a Re X order was made under the streamlined procedure, authorising the deprivation of his liberty at the placement, and requiring the London Borough of Barnet to make an application to the court ‘no less than one month before the expiry of the review period’, in accordance with any Rules or Practice Directions then in effect. The local authority did not make an application (on a COPDOL 11 form) until November 2018, some six months late.

The COPDOL 11 form has a box on the first page which tells the applicant to “Give any factors that ought to be brought specially 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 have an impact upon the court’s decision).” The local authority wrote 15 lines of text, including the following:

“The Local Authority is aware that [JDO] has separate clinical negligence proceedings in which the Official Solicitor is instructed. The Official Solicitor, who is not instructed in relation to [JDO’s] care and placement, has shared its view that, going forward, renting a flat with a private package of care might work for [JDO] with a view of a flat purchase in the future. No firm proposal has been seen and in any event none of the parties consider that this is in [JDO’s] best interests at the present time (certainly for the duration of this order) and all parties consider that the current supported living and care package remain in [JDO’s] best interests.”

The application was supported by a statement apparently by his mother, OD, “typed and couched in formal language,” including the following provisions:

“4. I have been advised about and I am in agreement with the London Borough of Barnet making an application to the Court of Protection to authorise the deprivation of liberty in the supported housing for my son. This includes the fact that there is no less restrictive option for my son other than to continue to reside in his current accommodation….and the restrictions in place are a proportionate response to the significant risks and harms he would be subject to if he were anywhere less restrictive….

  1. I can confirm that I do not consider there is a need for an oral hearing as I am in full agreement of the proposed arrangements under the Deprivation of Liberty Safeguards for my son [JDO].”

In January 2019, the court received a handwritten letter from JDO’s parents raising concerns about the care being provided to him. On 1 February 2019, solicitors instructed by the Official Solicitor rang the court to ask whether it had received an application from the Local Authority in respect of JDO, whether a hearing had been listed, and whether letters from the Official Solicitor had been put before the court. The call was followed up by a letter from the solicitors. Two weeks later, the court received a COP9 application from the local authority asking for further time to submit the requested statement and that the court “consider the local authority’s view that an independent person be appointed as litigation friend in this case” because “The local authority is concerned about the Official Solicitor having a potential conflict between [JDO’s] best interests in the clinical negligence claim and taking a view on the level and type of care and support that he currently requires.” The matter then left the streamlined procedure, and was listed for a case management conference, the Official Solicitor being invited to act as litigation friend. The local authority made a further application for an independent person to be appointed as JDO’s litigation friend, rather than the Official Solicitor, again citing the potential conflict of interest that it asserted that arose from the fact that “already acts as litigation friend for JDO in his clinical negligence claim and the level and cost of care and support JDO receives is of direct consequence to the amount of award JDO would receive in his clinical negligence case.”

That application was dismissed, and matters finally reached a hearing before HHJ Hilder. Before HHJ Hilder, the local authority set out three propositions:

  • That the streamlined procedure set out in PD11A only required persons with immediate concern about P fall within the categories of persons to be consulted, and from those categories it was up to the applicant to choose whom it wishes to consult;
  • That the duty of full and frank disclosure was a limited one, not requiring “the Applicant to disclose different opinions when those opinions are not, in the Applicant’s view, based on fact. The Applicant only has to highlight paragraph 33(b) [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] if it considers the DOL is not ‘in fact’ in P’s best interests.”
  • The consultation requirement in PD11A was limited to the persons who offer an alternative to the Applicant’s proposal.

The local authority accepted that: “a lot of the initial confusion in this application could have been avoided” if letters from the Official Solicitor had been annexed to the application;” and that the Applicant “was distracted by considering whether or not the Official Solicitor, as litigation friend to P in other proceedings, had the status of a party for the Re X application.” The local authority argued that there was no reason to state in the application paperwork that its proposed placement may not in fact be in JDO’s best interests “because there were no other available options at the time of the application to call that into question” and “[t]here was no prospect that in the period of the DOL authorisation sought in the application, up to November 2019, that there was any other available option for JDO…”; and that the Official Solicitor was not listed as a person to be consulted because “it did not appear to the Council that the Official Solicitor was interested in JDO’s current welfare.”

HHJ Hilder, it was fair to say, was not overly impressed with either the arguments as to the construction of PD11A or the explanations given by the local authority as to its approach. As she noted:

  1. The streamlined procedure was conceived and implemented with full acknowledgment of its dependence on the conduct of the party who makes the application – as demonstrated by the express inclusion of the duty of full and frank disclosure in the Practice Direction. This duty is foundational to ensuring the ‘reliability and completeness’ of information put before the court, and therefore foundational to compliance with Article 5. It must be understood as such by any person or public body who avails themselves of this procedure.
  2. The duty of full and frank disclosure is a serious and onerous obligation that applies to litigants and their legal advisers alike. As far as I am aware, this duty has not previously been the subject of judicial scrutiny in the context of deprivation of liberty authorisations but in other contexts the applicable principles are well settled.

Having set out the principles in an extract from Fundo Soberano de Angola & Ors v. Jose Filomen dos Santos & Ors [2018] EWHC 2199 (Comm), she continued:

Paragraph 33 of PD11A reflects these principles in simpler terms. In particular:

it specifies that the duty extends to “all facts and matters that may have an impact on the court’s decision whether to authorise the deprivation of liberty”; 

it directs the applicant to “scrutinise the circumstances of the case” and “clearly identify” factors needing particular judicial scrutiny or suggestive that proposed arrangements may not be in P’s best interests or the least restrictive option or otherwise indicative that the order should not be made; and

it specifically includes a requirement to explain why persons of a relevant category have not been consulted.

HHJ Hilder found nothing in N v ACCG that justified the submission that the requirement for full disclosure is limited to circumstances where there are “other actual competing alternatives available.” “If anything,” she noted: "the recognition of the “creative” possibility of proceedings (also at paragraph 35 of the judgment) goes against it. In my view, cases which considered authorisations of deprivation of liberty (albeit not by the streamlined procedure) offer more insight into the approach to be adopted to the duty of full and frank disclosure:

a. in Re Briggs (Incapacitated Person) [2017] EWCA Civ 1169 at paragraphs 94 – 95 King LJ was clear that   

“… Proper consideration of those cases by the assessor in compliance with the guidance in the DOLS Code, requires far more of an extensive consideration of the relevant circumstances than that which is suggested by Mr Nicholls, namely simply ensuring a care plan and needs assessment is in place without further consideration as to the content.

95. Contact, for example, is an issue capable of going to the heart of whether being detained is in a person’s best interests; it may be that in an ideal world P’s best interests would be served by a deprivation of liberty in the form of her living in a care home properly looked after, where the appropriate medication regime will be adhered to and P will have a proper balanced diet. Desirable as that may be, and such a regime may well provide the optimum care outcome for P, but it may also be the case that unless, regular contact can be facilitated to a particular family member, the distress and confusion caused to P would be such that it would be no longer in her best interests to be detained, and that what might amount to sub optimum physical care would ultimately be preferable to no, or insufficient contact….

b. in CB v. Medway Council [2019] EWCOP 5 at paragraph 33, Hayden J Vice-President of the Court of Protection emphasised that

“what is involved here is nothing less than CB’s liberty. Curtailing, restricting or depriving any adult of such a fundamental freedom will always require cogent evidence and proper enquiry .” (emphasis added)

As to the local authority’s arguments upon the law:

  1. Dealing with the legal submissions first, in my judgment the Applicant’s scope of consultation argument is misconceived. Paragraph 39(d) of PD11A is expressed in ordinary plain language and should be understood accordingly. The description of “anyone engaged in caring for the person” is plainly not limited to primary carers but is wide enough to include those who give care only for part of P’s living arrangements, including care during contact periods; and the description of anyone “interested in his or her welfare” does not import any limitation only to concerns about “P’s immediate welfare or near-future welfare.” I agree with Mr. Hallin that Mr. Paget’s suggestion otherwise artificially denies the obvious link between P’s long-term and immediate interests. Moreover there is nothing in paragraph 39 which limits the consultation to three people – “if possible, at least three” people in categories (c) and (d) should be consulted. It would clearly not meet either the letter or the spirit of paragraph 39 for the Applicant to “decide” whom to consult in such a way as to “bypass” those most obviously within the required categories. Mr Paget’s exposition of “apparent tensions” in paragraph 39(d) and how its requirements can be met in practice is, in my judgment, a strangulation of the plain language of the Practice Direction.
  2. I further agree with Mr. Hallin that the Applicant’s subjective view argument is a fundamental misunderstanding of the duty of full and frank disclosure. If it were to be up to the Applicant to determine whether a view which differs from its own is valid and therefore to be brought to the attention of the court or not, the duty of disclosure would be neither full nor frank. As set out in paragraph 46(2) above, it is a well-established principle of a duty of full and frank disclosure that the materiality of relevant information is to be determined by the court. If a person sensibly within the categories of person who ought to be consulted holds a view which is contrary to the Applicant’s, the Applicant must make that clear in the application, irrespective of its own view of the merits of that other view. In the context of a procedure designed for non-contentious applications, such factors clearly include indications that the proposal is in fact disputed, irrespective of the applicant’s view of the merits of that dispute. If explanation is needed as to why this is so, the Court of Appeal has set it out: the validity of the streamlined procedure as a mechanism for compliance with the obligations of Article 5 depends upon it.
  3. The Applicant’s alternatives-only argument overstates the ordinary meaning of the Practice Direction and the import of N. v ACCG . The suggestion of a literal meaning which requires consultation with “anyone, except the most insensitive person, who has met P” is an unattractive resort to reductio ad absurdum which fails to give credit to the professionalism, experience and judgment which may reasonably be expected of social workers and best interest assessors. If the duty of disclosure extended only to concerns where alternative options were already identified, inactivity on the part of person under the duty would be rewarded and opportunity for proper enquiry denied. There is no threshold for bringing a challenge to a deprivation of liberty and any applicant for authorisation under the streamlined procedure must proactively inform the court of contrary views.

When it came to the facts of the case before her, HHJ Hilder was scathing as to the conduct of the local authority, finding (inter alia) that the placement, at the time of filing the COPDOL could not reasonably have been considered by the local authority to be non-contentious, that it was in breach of its duty of its full and frank disclosure in relation to the Official Solicitor’s position because:

"in fact the Applicant did recognise that the Official Solicitor was an appropriate person to consult about the application in this case – as demonstrated by the fact that the Applicant did actually consult her (paragraph 3(g) of [the social worker]’s statement). However, having received a response which was not to the Applicant’s liking, the Applicant then failed to put the result of the consultation before the court fully or indeed at all. Such as was included in the COPDOL11 form reflects the Applicant’s position, not the Official Solicitor’s. Thereafter, the Applicant went to extraordinary lengths to seek to avoid the Official Solicitor’s participation in proceedings, including apparently choosing an alternative solicitor for JDO."

HHJ Hilder also emphasised that:

"it is not appropriate for the body with consultation obligations to “present” OD (or any person in her position in the proceedings) with a pre-prepared statement. The purpose of consulting with OD is to ascertain her views, so that they can be relayed to the court. It is not to put words into her mouth, or to persuade her to adopt the Applicant’s views. The contrast between the statement ostensibly made by OD and the letter written by DD is stark. There is significant distance between assisting a lay person to write their statement, and presenting them with a pre-prepared document for signing. The latter approach is highly unlikely to elicit genuine views. In this matter it amounts to a breach of the duty of full and frank disclosure."

Importantly, HHJ Hilder highlighted that:

"the period spent working out whether the application had appropriately been made represents a delay in the progress towards final judicial determination. I have no doubt that had the application in November 2018 been made on form COP1 as a disputed welfare issue, it would have been put before the Urgent Business Judge (as is usual procedure at the central registry) and would have been listed for Case Management Conference within something like 28 days of issue. Instead, its first listed hearing was not until 21 st March 2019. The very real consequence of the Applicant’s approach was delay and a longer period of unauthorised deprivation of JDO’s liberty."

HHJ Hilder will consider any applications arising out of her conclusions, and it is not difficult to anticipate what those will be.

Comment

HHJ Hilder noted that the fact that the serious deficiencies in the local authority’s application had been identified was “some testament to the robustness of the streamlined procedure itself.” However, the fact remains that the approach taken by the local authority was extremely troubling – and one anticipates that the court may of its own motion be examining some of the other “50 assessments” which the social worker in question said in her witness statement had “passed through the court of protection without any issues.” If any silver lining is to be found in this otherwise very grim cloud, it is that any shred of doubt as to the nature of both (1) the consultation requirement under COPDOL11; and (2) the duty of full and frank disclosure has been comprehensively dispelled.

Practical guidance on how to make COPDOL11 applications can be found here, and how to comply with the duty of full and frank disclosure here.

Alex Ruck Keene is a barrister at 39 Essex Chambers. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it.. This article first appeared on Alex's Mental Capacity Law and Policy blog.

 

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