The decision to deprive someone lacking mental capacity of their liberty can only be taken by a judge, not a court official, and should be judicially reviewed at least annually, the president of the court of protection (CoP) ruled yesterday.

Sir James Munby further ruled that even when authorisation for a deprivation of liberty (DoL) can be determined on the papers (without a hearing), there still must be an unimpeded right to request a speedy review.

Munby was giving judgment in a hearing to consider how to cope with the expected ‘very significant increase’ in cases before the CoP relating to DoL.

This arises from a Supreme Court judgment in P v Cheshire West and Chester Council handed down in March when Lady Hale stated: ‘It is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race.’

Lady Hale’s ruling effectively widens the scope of cases requiring input from the CoP to everyone who is considered to need a DoL for their own welfare. For the first time this will include people lacking capacity who are looked after at home, children and adults who are too disabled to complain or express an opinion about their DoL.

The result could be a 10-fold increase in DoL cases, according to research by the Association of Directors of Adult Social Services into 105 of the 152 local authorities in England, which anticipates the costs of meeting the surge to be at least £45m, excluding legal costs.

A Law Society spokesperson commented: ‘The fundamental nature of the issues at stake mean that P [the person lacking mental capacity] must always be a party to any proceedings that consider deprivation of liberty. Judicial protection of the right to liberty is of ancient standing in English law, and the right is recognised as a fundamental component of all major international human rights instruments.

‘The essential purpose of Article 5 is to provide protection from arbitrary detention. If P is not a party to proceedings it is difficult to see how P can effectively exercise and protect his or her Article 5 rights. 

‘For the same reason, and to ensure a fair hearing for the purposes of Article 6, the Society’s view is that a litigation friend should always be appointed for P in proceedings concerning deprivation of liberty.’