Judge: Sir Nicholas Wall, President of the Family Division
Citation:  EWHC 727
Summary: The President of the Family Division recently gave a useful indication of the approach to be taken by the Court of Protection in s.21A DOLS challenges where the only person objecting to a standard (or urgent) authorisation is P him or herself. The case concerned an elderly man suffering from dementia and other mental health issues, who was deprived of his liberty in a care home, and wished to leave. All professionals working with P and P’s son, who visited him regularly, agreed that it was in P’s best interests to remain in the care home. However, the President observed that since P’s rights under Article 5 ECHR were at stake, it was important that the court did not simply ‘rubber stamp’ the standard authorisation. It was proportionate to require a Court Visitor to prepare a report on P’s capacity and best interests, and, in the event that the report concluded that it was in P’s best interests to remain in the care home, for the matter to be concluded by way of a draft consent order and statement of reasons being considered by the court on the papers.
Comment: The decision is of interest because in many DOLS cases, it is only P who objects to the deprivation of liberty. The President’s approach suggests that even where P’s prospects of showing that the deprivation of liberty is not in his or her best interests, P is entitled to have the matter brought to court and examined. It is not clear how this fits with the LSC guidance on non-means tested funding for s.21A challenges which require borderline prospects if the issue is of overwhelming importance to P. The authors suspect that in a great number of DOLS cases, P’s prospects may be below borderline, yet the safeguard of requiring the court’s intervention is required in order to protect P’s right to review by a court under Article 5(4). Nor is it clear the extent to which the Court Visitors will be able to deal with such cases in the event that there is an increase in the number of DOLS challenges that are brought.