A 10-fold surge in the number of legal challenges to deprivation of liberty safeguards (DOLS) expected to be brought over the coming year will overwhelm the Court of Protection (CoP) and cost local authorities more than £70m, the president of the family division of the high court has predicted.
Sir James Munby gave his warning during a CoP hearing last week to determine how the process could be streamlined to cope with the extra caseload. Options discussed included allowing the CoP to process bulk applications and extending the timescale for completing DOLS assessments.
He said that following the Supreme Court ruling in P v Cheshire West and Chester Council that severely disabled people had the same universal right to 'physical liberty' as anyone else, it has become increasingly clear that the number of people deprived of their liberty on mental health grounds has been 'vastly' underestimated.
The expected flood of cases raises 'very serious questions about the administration of justice', he added, and, without streamlining the process, the CoP could not cope. Councils are also likely to be overwhelmed as they must commission, 'at great expense in time and money', six assessments before authorising or rejecting the application to deprive a person of their liberty.
The Law Society's mental health and disability chair Sophy Miles said that the estimated 10-fold increase in DOLS cases comes from research by the Association of Directors of Adult Social Services into 105 of the 152 local authorities in England, which anticipate the costs of meeting the surge to be at least £45m, excluding legal costs. 'Extrapolated to all councils in England and Wales, the cost is likely to be more than £70m.'
Sheree Green, CoP lead at Birmingham firm Anthony Collins and a member of the Law Society's mental health and disability committee, said: 'Critically, these proceedings will determine how to keep any person, who may struggle to make the decisions for themselves regarding their care and treatment, at the heart of all decision-making. The court is rightly considering the need for the vulnerable person, who may be deprived of their liberty as part of their care arrangements, to have an unequivocal right to legal representation, and access to public funding, whilst mindful of the need to streamline and simplify the process.'