June has been an eventful month for mental capacity practitioners, with the Supreme Court not just distinguishing but ripping up the so-called acid test for deprivation of liberty laid down in the then landmark Cheshire West judgment of 2015 (The Attorney General for Northern Ireland’s reference (Deprivation Of Liberty) [2026] UKSC 16 (‘AGNI’)).
The test was clear and objective (if somewhat tautologous), asking simply whether the incapacitated person was subject to constant supervision and control and not free to leave. Lady Hale had summarised her uncompromising rationale with the much-quoted line that a ‘gilded cage is still a cage’, where the cage in question was likely to be care home or supported living placement bedroom or even, in some cases, the incapacitated person’s (‘P’) own home. And so became ubiquitous the Deprivation of Liberty Safeguards (DoLS), which had been brought in following the case of HL v UK [ 2004] to fill the so-called Bournewood gap and comply with the requirements of Article 5 in respect of the detention of objecting elderly or learning disabled adults (who did not fall under the Mental Health Act).
The DoLS exploded from a few thousand applications a year in 2009 to around 300,000 in 2024. Each year, around 2,500 of these ended up as Article 5(4) appeals in the Court of Protection. While this was in principle a good thing, these cases would often trundle on for months or sometimes years, and while occasionally this would lead to P moving to a more convenient or suitable placement, frequently the parties would end up arguing over the minutiae of care plans, whether P was getting enough of their favourite meals or the number of monthly visits to the hairdresser. As Celia Kitzinger of the Open Justice Court of Protection Project put it in a blog post earlier this year: ‘In many cases, the only concrete outcome of the [section] 21A application is to cause distress to P and their family.’
The problem with the Court of Protection Welfare division is, in the words of a former colleague, that it’s become the equivalent of ‘wading through treacle’ – the modern equivalent of the Jarndyce jurisdiction. Which is more of a problem when the individuals at the centre of the proceedings are vulnerable and incapacitated people and their families.
I currently have a case that is just about to nudge three years, during which time there have been around 30 orders. Yet the big issues are still waiting to be decided. This problem is nothing new: 10 years ago, the then President of the Court of Protection, Sir James Munby, railed against the ‘striking contrast between the time some personal welfare cases in the Court of Protection take to reach finality and the six-month time limit applicable in care proceedings’.
As Kitzinger has also highlighted, many of those at the centre of CoP welfare proceedings are in their 80s and 90s. In a recent case of mine coincidently written up by Celia, my client and her 89-year-old mother together spent over £175,000 on legal fees (the mother was represented by the Official Solicitor until she ran out of money), in a case that probably should never have been brought to court and certainly should have been concluded more quickly. My client, who was her mother’s health and welfare LPA and main carer, had suffered a short-lived bout of carer stress which had triggered a safeguarding investigation. When she later brought her dementia-suffering mother home from a care home before DoLS were put in place, the local authority went into overdrive.
The court, rather than identifying (and risk assessing) the relevant issues at an early stage, presided over the daughter’s night-time removal from the property she shared with her mother, which meant that she spent several winter months homeless. It was only after the local authority failed on successive occasions to set out any intelligible schedule of facts upon which to justify its concerns that an independent social worker belatedly confirmed that there was no risk to P or coercive or controlling behaviour.
With the suspended LPA reinstated, everything continued more or less as before the court’s intervention, albeit with my client financially and emotionally broken by 18 months of hell. Kitzinger, writing about this case at the end of 2025, said: ‘As a member of the public observing this case, I am appalled at what looks to me like a flagrant waste of public money, which seems only to have caused harm to this family.’
Some will argue that even when the liberty in respect of which the individual was putatively deprived was entirely notional, designating every arrangement where a person was under constant supervision as one which required administrative or court authorisation (and the potentially court review) was a good thing; and they will ignore the fact a form of DoLS paternalism had become pervasive. The latter was highlighted in a recent case in which the parties spent hours deliberating on whether a mildly brain-damaged epileptic woman living alone in her own property who had vehemently refused in-person carers but agreed to remote camera-based checks, might actually – because she was potentially subject to continuous supervision – be deprived of her liberty (for which ongoing court authorisation and review would be required).
While messier, the new test requires consideration of all relevant circumstances, including P’s level of consent or acquiescence. Given that this will inevitably mean fewer cases being issued, the courts and practitioners will have more time to focus on those cases of greatest need. Perhaps this is also the moment to follow up Munby’s strictures and introduce an overhaul of the court’s case management approach to welfare cases across the board.
Rod Campbell-Taylor is the managing solicitor of Campbell-Taylor Solicitors, London
No comments yet