This applies to people who are deprived of their liberty at home (or any place other than a hospital or care home) and the cases of Re X (Deprivation of Liberty) (2014) EWCOP 25, (2014) MHLO 86 and Re X (Deprivation of Liberty) (No 2) (2014) EWCOP 37, (2014) MHLO 98.

The current 'Re: X procedure' to be used in the Court of Protection enables a streamlined procedure where Local Authorities and others can seek authorisation from the Court of Protection of a person’s deprivation of liberty. This often leads to a Court decision on paper, with no oral hearing, and without the person concerned being a party to the proceedings.

This has now been thrown into question by the Court of Appeal who have indicated that the person deprived of their liberty (“P"), should always be a party to the proceedings when the matter relates to his or her possible deprivation of liberty.

On a technical point the Court of Appeal determined that it did not have jurisdiction to hear any appeal as Lord Justice Munby, when deciding the original Re: X case, had not, in fact, made any decisions against which an appeal could be brought.

We think this paragraph from Lady Justice Black best sums up the Court of Appeal’s view:

“Under [Lord Justice Munby’s] scheme, “which amounts to placing an additional hurdle in the way of P participating in the proceedings – instead of being a party automatically, there is an additional process to be gone through before he is joined, namely the collection/provision of material to persuade the court that he wishes/needs to be joined...P is therefore in a position which is the opposite of what the Strasbourg jurisprudence requires, namely that the essence of Article 5 right must not be impaired and there might, in fact, need to be additional assistance provided to P to ensure that it is effective” (para 107).

Lady Justice Gloster then expands on this by saying:

“I am supported in this conclusion by the views of Lord Justice Moore-Bick and Lady Justice Black, with which I agree, that in any event [Lord Justice Munby’s] conclusion – that a patient need not be made a party in order to ensure that the proceedings are properly constituted (even though he may be joined as a party at his request) – is not consistent with fundamental principles of domestic law and does not provide the degree of protection required by the Convention and the Strasbourg jurisprudence.” (para 127)

“In order to obtain a decision which binds a person of full age and sound mind it is necessary to make him a party to the proceedings and in the light of the approach adopted in Cheshire West, it is difficult to see why the same should not be true of a person who lacks capacity, despite the fact that he must act by a litigation friend, when his liberty is at stake” (para 170)

Where does this leave us? Well, given this judgment, the present ‘Re: X Procedure’ will need to be very quickly removed and replaced with a procedure that incorporates P as a party in all circumstances and is Article 5 (right to liberty and security) compatible. However, how quickly this can be done is another matter in itself.

For the time being, whilst the Court of Protection decide what will replace the ‘Re: X Procedure’, it would seem sensible that Local Authorities and Clinical Commissioning Groups do not delay in bringing proceedings in the Court of Protection, as Bournemouth Borough Council did in the recent case of Bournemouth Borough Council and PS and DS [2015] EWCOP 39.

We would also urge Care Agencies and Independent Mental Capacity Advocates (IMCAs) to review all cases where they are caring for, or assisting, a person who may be deprived of their liberty in a placement other than a care home or a hospital. If any concerns become apparent, we would suggest that these concerns are raised with the Local Authority or Clinical Commissioning Group and that an urgent deprivation of liberty assessment is requested.

We would recommend that if an IMCA has any concerns, they should take independent legal advice at an early stage.