Court of Protection Case Law Update – April 2025
Added in: Court of Protection
The previous few months have provided a number of interesting judgments which have provided reminders and clarifications of things which appear to have been forgotten or lost.
Re EM (Deprivation of Liberty, Care Planning & Costs) [2024] EWCOP 76 (T2)
This case concerned a young woman, given the name ‘Emma’ by the court to personalise her. For present purposes, I will also refer to her as Emma.
Emma was detained under s2 of the Mental Health Act in March 2023 after going missing from home where she had lived with her parents and younger sister. Since that time there were numerous incidents where Emma engaged in self-injurious behaviour and attempted suicide.
Proceedings were initially started in August 2023 to authorise deprivation of her liberty under the inherent jurisdiction. In December 2023 Emma was assessed as lacking capacity in relation to her residence and care. In July 2024, proceedings progressed to the first attended hearing in the Court of Protection. By this stage Emma had moved into a placement outside of Hospital and it was recorded incidents of self-harm had declined.
Aside from the substance of this case being worth a read, HHJ Burrows used the opportunity to clarify some confusion of some issues he considered to be ‘blindingly obvious’.
The key paragraphs are worth reading in their entirety:
Having read the documents in this case, including those concerned with Emma’s own wishes and feelings, it seems to me the Court needs to be very clear in the language it uses.
The acronym DOL (or DoL) or its plural “DoLs” comes from the wording of Article 5 of the European Convention and refers simply to “deprivation of liberty”. The term “DOLS” refers to Schedule A1 of the MCA, otherwise known as the Deprivation of Liberty Safeguards. Emma is therefore subject to an order that authorises her deprivation of liberty, which could be called a DoL or DoLs order. She is not on a DOLS.
I hope not to confuse things further by explaining my understanding of the law. The MCA requires decision makers to make decisions for people who cannot make those decisions for themselves, where necessary (see ss 1-4 MCA). That includes issues over residence and care. It enables decision makers to decide on care plans that meet the best interests of the person concerned. That is the starting point. A care plan in P’s best interests, and the one which adopts the least restrictive option is what the decision maker must choose. If that plan involves or may involve a deprivation of P’s liberty, then it needs to be authorised and will be if it is necessary and proportionate in furthering P’s best interests.
It can be authorised under Schedule A1 of the MCA if the person is 18 or older and is detained in a care home or hospital. These are the DOLS. If the person is not yet 18 or is somewhere other than a hospital or care home, the Court must decide whether to authorise the care plan under ss 15 and 16 MCA.
The inherent jurisdiction has been used in Emma’s case to authorise her deprivation of liberty outside a statutory regime. These are also known as DoL or DoLs orders, with good reason.
Such authorisation, by any of these avenues, is permissive rather than mandatory. Or put another way, it enables the carer to use restrictions that amount to a deprivation of liberty, it does not require them to do so.
Therefore, the expression “on a dol” or “under a dol”, whilst perfectly legitimate abbreviations, must be understood properly and within that context. To be “on” or “under a dol” means to be subject to an order (or authorisation) approving and authorising a care plan which allows the carer to use restrictions that amount to a deprivation of liberty in the best interests of P. Clearly, the emphasis here is on the care plan itself and not the legal status of the restrictions that can be used. The care plan to be used is still a decision to be made by the carer/clinician/MDT in charge on the basis of what they consider to be needed in the circumstances that arise, and what is in P’s best interests.
Unfortunately, when the Court authorises such a care plan that amounts to a “dol” it is seen as being mandatory, like the Court has imposed a prison sentence. That gives rise to an unfortunate misconception on the part of the people who are the subject of these orders that the order, while it remains in place, requires those providing care to keep them actually locked in and locked up.
In some extreme cases coming before the National DOLs List and the Court of Protection it is easy to see why the misconception arises, particularly when the options for care are all inadequate, P’s behaviour is extreme, and LAs are fighting a very difficult and seemingly endless battle to keep P safe.
However, the principle is always the same. The Court will ask questions like: what is the care plan and how has it been arrived at? What are the risk assessments of alternative plans compared with this one? What does P think? What do other relevant people under s. 4 MCA think? Does the LA/NHS provider (as the case may be) consider the care plan to be the least restrictive option that will address P’s needs? What steps are being taken to reduce the need for such an intense care plan? The Court is obliged to scrutinise the answers given.
It is important to emphasise though that the care plan is King here. That is how Emma’s case should be seen. Considering Dr Khan’s engagement with Emma, an attempt is being made to give effect to what Emma wants in her care plan. She wants less restriction. If the clinicians, social workers, and other relevant professionals can work with Emma (and perhaps her family) to devise a care plan that does not amount to a deprivation of her liberty, and that care plan is in her best interests, then the Court will authorise it.
The LA in this case is (I think) planning to move Emma to a place where there will be no need for “a dols”. However, through their counsel it was made clear to me that could only happen if I “lifted the dols”. This is incorrect. If the LA devises a care plan whereby Emma can move to another place where she will not be deprived of her liberty, there will be no need for the Court to authorise her deprivation of liberty. If a plan is devised at her present placement that does not amount to a deprivation of Emma’s liberty, the Court will not need to authorise one.
So profound has the language and the law been confused in this area, that these two statements of what should be the blindingly obvious, appear necessary.
It is important to remember that the Court is in place to ensure that disputes about capacity, best interests and the proportionality of restrictions are resolved as well as ensuring that there is a consistent scrutiny of a care plan that imposes significant restrictions on P.
Once again, however, care planning and the assessments and consultations around that are what is most important. That means Emma is central to the process. By focusing on the Court and the making and un-making of a “dol”, Emma and other people in her position are made to feel peripheral to the whole process. Many of them conclude that “getting off the dol” is essential before they can be part of the process. Many feel that when on a “dol” they are filed away and forgotten only to be taken out for scrutiny when someone else makes a fuss.
In fact, the whole MCA/Court of Protection process, particularly when concerned with Article 5 rights, is about ensuring that these care planning decisions are constantly reevaluated to ensure that P’s best interests are served through the least restrictive option, and P is central to the whole process.
At the October hearing, I therefore approved the care plan I was invited to approve at the placement. That care plan amounts to a deprivation of Emma’s liberty not because the Court says it does, but because the restrictions imposed under the care plan are said to be necessary, proportionate and in her best interests according to those involved in her care, and they place Emma under continuous supervision and control and she is not free to leave the placement.
The Court approves the restrictions, it does not create them.
Some will consider the fact that this reminder is necessary somewhat concerning. That does not make it any less necessary a reminder that any restrictions are approved and are permissive. It is important that not just lawyers are aware of this, but so too are social workers, care providers, carers and, when necessary, P themselves.
CT v London Borough of Lambeth & Anor [2025] EWCOP 6 (T3)
In this case Theis J makes clear that the fact a person lacks ‘insight’ into their own needs or behaviours cannot and should not be used as a short cut, or silver bullet, to reach the conclusion that they lack capacity in any given area.
This was an appeal of an earlier decision by HHJ Berkley in which he had concluded that:
CT cannot use or weigh 'the fact that he has mental impairments and that these lead to specific care needs and impact on his wider decision-making ability' [33], 'his own impulsivity, lack of planning ability and lack of foresight when he is making decisions about his care needs' [34], 'the knowledge of his mental impairments' [35], 'the impact of [CT's] mental impairment [39], that CT is unaware that the impact of his mental impairment 'leads to a lack of foresight when weighing the consequences of refusing treatment' [40] and 'on his impulsivity means he is unable to weigh that impulsivity when making decisions' [40], the inability to weigh the likely outcome of the refusal of care [43] and the impact that 'his mental impairment has on his acceptance of care provision explains the history of admission to and self-discharge from previous placements' [45].
The Official Solicitor appealed on three grounds. Two of which provide a good reminder of the way in which capacity assessments are to be considered and conducted:
- That HHJ Berkley set too high a bar in considering the relevant information that CT needed to consider when making decisions about his residence and care needs. In particular, the Judge erred in stating that CT’s mental impairments are relevant information which he needs to understand, use and weight.
The correct order ground: that HHJ Berkley started with CT’s mental impairments, deciding they lead to his inability to take decisions rather than starting with whether he can understand/retain/use or weigh/communicate the relevant information and only if he is unable to do so consider whether that inability is because of his mental impairment.
Theis J concluded the following:
- In relation to the first ground of appeal, I accept the submissions of the Official Solicitor that the Judge fell into error when he set the bar too high in considering the relevant information for CT on the facts of this case, in particular that CT's mental impairments are relevant information that he needs to understand and use and weigh.
- The course taken by the Judge conflates the two stage test set out in JB and creates a circular approach that risks leading to the inevitable conclusion that those who have a mental impairment lack capacity. Such an approach undermines the principles and safeguards in the MCA 2005.
- What is required is a careful delineation of the relevant information, relevant to the particular case in question, and then an assessment, in accordance with the statutory framework, whether the individual can understand, retain, use/weigh that relevant information and communicate the decision. It is only when that process concludes that the individual is unable to make a decision within that statutory framework that the court then has to consider whether the inability is 'because of, an impairment of, or a disturbance in the functioning of, the mind or brain'. In the Judge's judgment that important delineation was not present or clear.
- Although not necessary for the purposes of the outcome of the appeal, I also accept both grounds two and three are established.
The two stage test in JB is clear. The approach in this case of including insight into his mental impairment had the effect that the Judge did not conduct the functional test in accordance with the requirements of the MCA 2005. By taking that into account the Judge conflated and risked blurring the two distinct tests. This was caused by not taking the structured approach of going through the list of information identified as being relevant, resolving the relevant issues in the written and oral evidence and setting out the Judge's assessment of whether CT can use/weigh the information. In effect, the Judge's conclusion on the first stage was determined by CT's mental impairment and not by resolving the key evidential dispute in respect of the functional test.
It is important to remember that a person subject to a capacity assessment should be provided with the relevant information. Their belief of that information, or their insight into their needs and behaviours absent the relevant information should not factor into the first stage. To do so conflates stages one and two.
Jack Barber
Deans Court Chambers
