A Court of Protection judgement has placed responsibility on Health Secretary Jeremy Hunt and Justice Secretary Michael Gove to release funding to ensure that vulnerable people in deprivation of liberty cases have access to appropriate representation.
At the moment, councils must apply to the Court of Protection to authorise any deprivation of liberty in community settings, such as supported living, where the person lacks the capacity to consent to their care arrangements. An independent representative must be appointed if the person does not have a family member or friend who is suitable to represent them.
Deprivation of liberty in care homes or hospitals is authorised via the deprivation of liberty safeguards (DoLS). Deprivation of liberty in community placements, such as supported living, must be authorised by the Court of Protection.
The representative’s role can be filled by paid advocates but the funding pressures on advocacy services, combined with a surge in demand triggered by the Supreme Court’s landmark ‘Cheshire West’ ruling on deprivation of liberty in March 2014, has led to longstanding problems securing representatives for cases reaching court.
However, in the recent case of JM & others, the judge made the “unprecedented” move of ordering Mr Hunt and Mr Gove as parties in four test cases where no appropriate representative could be found for reasons that included a lack of funding for advocacy services. He also suggested that all future similar cases should be adjourned until a workable solution is found.
As the Law Society pointed out, the ruling makes the Government responsible for making sure that vulnerable people are properly represented when important decisions are made about their care, which they applauded, saying that those who are least able to defend themselves should not be “sacrificed on the altar of austerity”.