Mental Capacity Case

Re X and others (Deprivation of Liberty)

Sir James Munby P

In Re X and others (Deprivation of Liberty) [2014] EWCOP 25, responding to the fact that there will be very many more applications for authorisations of deprivations of liberty outside the scope of Schedule A1 to the MCA 2005, the President of the Court of Protection sought to set out a streamlined process to seek to enable the court to deal with deprivation of liberty cases in a timely, just, fair and ECHR-compatible way.  In this first of two judgments, Sir James Munby P sets out the broad framework; the second will elaborate on the reasons and address three remaining matters of the 25 identified by the court.

The practical implications of the judgment are very significant; it is anticipated that new forms and a Practice Direction will be forthcoming short order; in the interim, for discussion of the key points of the judgment and, in particular, the evidential requirements imposed upon applicants for such authorisations, we refer our readers to this guide.

It should finally be noted that, as at the time of going to press (October 2014), permission had been sought to appeal by two of the protected parties in the proceedings before the President to appeal his conclusions that: (1) (subject to certain conditions) it is not necessary for P to be a party to proceedings for applications for judicial authorisations for deprivation of liberty; and (2) that a litigation friend is not required to act via a solicitor for purposes both of conducting litigation and acting as advocate before the court.

We will keep you posted as to developments both in relation to the case specifically and in relation to the application procedure more generally.