In the final post of our blog mini-series on Court of Protection Deprivation of Liberty, Fergus Campbell, NHS Midland and Lancashire’s (NHS ML) Clinical Lead for the Court of Protection and the Mental Capacity Act, and a qualified social worker, walks us through the CoPDoL process and why it is imperative these are followed to ensure an individual’s human rights are not breached.

An application to the Court of Protection (CoP) is currently the only means by which a public body responsible for commissioning care can seek authorisation for a deprivation of liberty (DoL) in the community for a person who is assessed to lack the mental capacity to make decisions regarding their care and residence. This applies to any individual who is outside of a hospital or care home environment, or who is aged 16 or 17.

In the correct circumstances, the court can authorise the deprivation of liberty without a hearing. This procedure is often called the Re X streamlined procedure. The COP11 form should be used in this instance, along with appropriate documentation outlining:

– Medical evidence to support mental disorder for the purpose of the diagnostic element

– Capacity assessment (COP3 Form) confirming the individual lacks capacity to make the appropriate decisions

– Best interests decision-making 

– Care plans and care records

– Evidence to support that less restrictive options have been tried or considered, and why the proposed option and measures are proportionate

Failure to seek the appropriate authorisation can lead to the public body breaching an individual’s human rights due to unlawful deprivation of liberty, which can result in financial damages being awarded to the individual.

However, in some circumstances, it is not appropriate to make an application via the Re X streamlined process.

The COP11 form outlines the following criteria, which may indicate whether the streamlined process is not appropriate, and where an oral hearing may be required:

– Any contest by ‘P’ or by anyone else to any of the matters in the application (e.g., age, unsound mind, capacity, support plan, best interests)

– Any failure to consult and gather views from ‘P’ or other relevant people

– Any concerns arising from information within the application

– Any objection by ‘P’

– Any potential conflict with any decision (e.g., any relevant advance decision by ‘P’, identification of a litigation friend or Rule 1.2 Representative for ‘P’, or decisions under a lasting power of attorney or by ‘P’s deputy)

– If, for any other reason, the court deems that an oral hearing is necessary or appropriate

Our support for you

NHS ML can support you in providing individuals under your care with the best possible service.

Our Personalised Healthcare Commissioning service has a team of experienced registered general nurses, registered mental health nurses, and social workers, many of whom have best interests assessor expertise. We have a dedicated end-to-end case management function and can manage the administrative side of the Court of Protection process, working closely with individuals and their representatives.

We also offer a variety of services, including triage of outstanding cases, Mental Capacity Act and best interests meeting training. Our vast range of knowledge and experience ensures that individuals are at the heart of the decision-making process and that their Article 5 and 8 human rights (HRA 1998) are protected.

We have extensive experience in making our own Court of Protection (CoPDoL11) applications, including streamlined Re X applications, without the need for legal instruction. This saves on legal costs by preparing applications in-house in a more standardised format.

ML has streamlined fee payment processes, and our internal quality assurance system ensures we consistently deliver the high standard of applications that the courts require.

If your CoPDoL caseload is growing, ML is here to help. As part of the NHS, we can deliver a robust, efficient CoPDoL service to supplement your current activity, take the pressure off your teams and systems, all while delivering the best value for every pound spent within our NHS.

Drop us an email and we’ll get in touch to see how we can help.

Contact details

E: mlcsu.personalisedhealthcare@nhs.net

W: https://www.midlandsandlancashirecsu.nhs.uk/personalised-healthcare-commissioning-services/our-services