Summary

The Court of Protection is introducing a new form for Community Deprivation of Liberty applications as of 1 December 2016.

The new COPDOL10 form includes numerous improvements which have been suggested by the Courts since the COPDOL10 form was first introduced in 2014 to enable the Court of Protection to authorise non-contentious deprivations of liberty outside hospitals and care homes without the need for a Court hearing - i.e. via the 'Re X' streamlined procedure.

The new form includes at least a dozen changes and is significantly longer than the previous version.

The new COPDOL10 form cannot be used until 1 December 2016, although we understand that the Ministry of Justice is keen for Court users to familiarise themselves with the form before it goes live. The Court will accept the old form up until 1 February 2017.

Context

Since the Supreme Court decision in Cheshire West in March 2014, the Court of Protection has tried to come up with a workable solution to deal with the influx of applications for deprivation of liberty authorisations in the community.

The Court's solution was to introduce a new streamlined process in the guise of the COPDOL10 form which came into existence in 2014. As part of this, the Court has sought to set down the 'irreducible minimum' requirements for the evidence which must be filed to enable the Court to authorise non-contentious deprivations of liberty outside care homes and hospitals without the need for a Court hearing.

Since 2014, the extent of the information which the form seeks to elicit has been the subject of further litigation, most notably in the Court of Appeal case of Re NRA (September 2015). Following on from that case, those familiar with completing the COPDOL10 form over the last year will know that a considerable amount of additional information now needs to be included on or with the form in order for applications to be successful.

However, there has been on-going uncertainty about the extent of the evidence required to ensure that an application under the Re X procedure will be granted – hence the introduction of the new form.

New COPDOL10 Form

A revised COPDOL10 form has now been approved by the Court of Protection, taking into account more than a dozen improvements suggested by the Court of Appeal in the NRA case. The improvements identified by the Court of Appeal - which are now integrated into the new form - include, amongst a variety of other changes, eliciting information in relation to:

  • the suitability and willingness of family members to act as litigation friend or Rule 3A representative
  • the date P moved to his or her current accommodation, where he or she lived before, why the move took place and how the move is working
  • any tenancy in place
  • participation of family and friends over the years, the nature of the care they have provided, their approach to issues relating to its provision in the past, and the reasons why it is thought that they will provide objective and balanced support for P in his or her best interests
  • why it is thought the case is not controversial and can be dealt with on the papers.

By ensuring that the questions raised in the newly revised form are directly and accurately answered and by ensuring that additional documents - such as the current dated and signed care plan, transition plan (where relevant) and a best interests assessment - are appropriately provided, health and social care professionals completing the form should be able to obtain appropriate orders authorising deprivations of liberty arising in the community.

Outstanding Issues

The revised COPDOL10 form does not address the additional practical requirement arising from the recent case of Re VE (March 2016) that a separate statement from the proposed litigation friend/rule 3A representative should be obtained. On this point, we would recommend that, where possible, a statement from the family member/friend should be submitted with the COPDOL10 application. This will potentially enable the Court to make the order authorising the care arrangements on the first occasion the judge considers the papers, rather than requiring the Court to direct that the proposed litigation friend/rule 3A representative files evidence separately.

The reality is that, even in the most straightforward of these cases, the 'irreducible minimum' of evidence required will include the completion of a minimum of 25 pages of the COPDOL10 application form, with at least 4 documents annexed to the form.

The introduction of the new form is nevertheless likely to be broadly welcomed. At the very least, its introduction draws a line under a turbulent period when the extent of the evidence required to bring these applications was not always altogether clear to the professionals having to complete the form.