‘Failed Re X’: Deprivation of liberty and Re X (the streamlined process) – a social work perspective

By Eleanor Tallon, 10th October 2023

The words “Failed Re X” has appeared in Court of Protection lists recently – like the two reproduced below. 

‘Re X’ is the term used to refer to the streamlined process through which the Court of Protection (CoP) can authorise a ‘Deprivation of Liberty’ (DoL), as established in the case of Re X and others (Deprivation of Liberty)[2014] EWCOP 25.

Essentially, the streamlined process is designed for non-contentious cases which allow for judicial review without an oral hearing (or ‘on the papers’). 

Sometimes, though, ‘Re X’ applications are made, and upon reviewing the evidence, the court decides this streamlined process is not appropriate and the case needs to be heard. 

That is what the listings above refer to as a ‘Failed Re-X’.

In this blog post I’m going to explain the ‘Re X’ procedure in context and consider what sorts of cases lead to ‘Failed Re X’ hearings in the Court of Protection. I will cover:

1. Deprivation of Liberty and ‘Cheshire West’
2. The difference between ‘DoLS’ and ‘CoP DoL’ 
3. Re X (streamlined process)
4. Why the Re X process might ‘fail’

I am a registered Social Worker and Best Interests Assessor, and I work independently as an expert witness (ISW) for the Court of Protection. The aim of this explanatory blog is to provide a basic overview of the above, so it is likely to be most helpful for professionals and members of the public who don’t work in this area. 

‘Deprivation of liberty’ (DoL) 

Most readers will be familiar with the term ‘deprivation of liberty’ (DoL). There is no statutory definition of what constitutes a DoL. This is determined by case law, such as Stork v Germany [2005], which identifies the three elements of a DoL:  

(a) the objective component of confinement in a particular restricted place for a not negligible length of time; 

(b) the subjective component of lack of valid consent; and 

(c) the attribution of responsibility to the state.

In plain language, a DoL could be described as the combination of restrictions placed on a person’s freedom and movement (that in sum amount to a deprivation of liberty) to which the person lacks capacity to consent. 

A whole range of criteria must be considered and applied to the specific facts according to the person’s concrete situation, such as the type, duration, effects and manner of the arrangements in place. The distinction between ‘restriction’ and ‘deprivation’ (of liberty) relates to the degree or intensity, and is not one of nature or substance (Guzzardi v Italy, 1980).

If it is identified that a person is deprived of their liberty, the European Convention of Human Rights (ECHR)provides that the person ‘shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful (Article  5).

So, where Article 5 (right to liberty) is triggered, the relevant legal framework must be followed to ensure that the person has an independent check on the arrangements, and if a DoL is unavoidable, they must have access to appropriate representation and legal appeal (these are the legal safeguards). 

Cheshire West and the ‘acid test’ 

In 2014, a landmark Supreme Court judgment was given by Lady Hale, which formulated the ‘acid test’ to determine whether a DoL is taking place (P v Cheshire West and Chester Council [2014], or ‘Cheshire West’ as it is more commonly known). The acid test in effect widened the definition of DoL and made clear the factors which are not relevant. 

The acid test is met when:

• The person is under continuous^[i] supervision and control; 
• The person is not free to leave (in a permanent sense); 
• The arrangements are ‘imputable to the state’ (i.e., the arrangements are known, or ought to be known by the state); and
• The person lacks capacity to decide on the arrangements.  

The following factors are not relevant: 

(a) the person’s compliance or lack of objection; 

(b) the relative normality of the placement (whatever the comparison made); and 

(c) the reason or purpose behind a particular placement. 

A detailed commentary by Dr Lucy Series on the Cheshire West judgment is available here.

The legal safeguards: DoLS and CoP DoL applications (Court of Protection)

The Deprivation of Liberty Safeguards (DoLS) framework was introduced in 2007 under Schedule A1 of the Mental Capacity Act (2005), and applies in care homes or hospitals to those aged over 18. A request for a DoLS authorisation is made by the care home or hospital to the Local Authority (i.e., the ‘Supervisory Body’)

The Supervisory Body allocates a Best Interest Assessor (BIA) to complete the combined assessments (i.e., ADASS Form 3) which includes the mental capacity and best interests assessment on whether the person should reside in the specific setting, for purposes of the care and treatment (that give rise to a DoL). 

If the person lacks capacity to decide on the arrangements, the BIA reviews whether the arrangements amount to a DoL, whether this is least restrictive, and whether it should be authorised by the ‘Supervisory Body’ in the person’s best interests. A mental health assessor must confirm if the person has a mental disorder, and whether a DoLS authorisation would be incompatible with any applicable legislation under the Mental Health Act 1983.

When a DoLS authorisation is in place, the person is appointed a Relevant Person’s Representative (RPR). This could be a friend/ family member or a trained advocate, whose role (in summary) is to monitor the arrangements and whether the person is objecting to the DoL (this could be verbally or through behaviour). 

If it appears that the relevant person would wish to legally challenge the authorisation, the RPR has a responsibility to make an application to the court on their behalf, and the Local Authority must also take steps to ensure an application is made where an appeal is required (see RD & Ors [2016] for relevant guidance). 

An application to appeal the DoLS authorisation is  brought to the Court of Protection under section 21A of the MCA 2005. Under section 21A, non-means-tested legal aid is provided to cover the legal costs for ‘P’ (the protected party).  

If a deprivation of liberty arises in any setting other than a care home or hospital (e.g. in supported living, or in the person’s own home) or if the person is aged 16-17 years old (and the person lacks capacity to decide on the arrangements) a welfare application to the Court of Protection is required^[ii]. 

Once an application is made to the Court of Protection, the Judge considers the complexity of the matter and directs whether or not ‘P’ should be joined as a party, and whether a Litigation Friend/ Accredited Legal Representative or another form of representation under Rule 1.2 (Court of Protection Rules 2017) is needed to ensure that P’s ‘voice’ is heard. A Rule 1.2 Representative could be a friend/ family member, or trained advocate.

Ultimately, the Judge decides whether the arrangements are least restrictive and in the person’s best interests. If appropriate, the Judge will make an order to authorise the arrangements. Other factors may need to be considered, for example an order for a tenancy agreement to be signed (where there is no Deputy or Power of Attorney over property and affairs). 

However, in all cases other than section 21A (a legal appeal of a DoLS authorisation), any legal aid funding would be means tested, which is a relevant factor when considering whether P should be joined. This continues to be a debated issue in terms of ‘P’ having equal access to legal representation whether the DoL arises in a care home/ hospital or another setting.

Streamlining the Court of Protection Process: ‘Re X’

The broadened definition of DoL resulting from the Cheshire West judgment nearly a decade ago now led to a huge increase in referrals for Deprivation of Liberty Safeguards (DoLS) authorisations being made to Local Authorities, and to an increase in applications made to the Court of Protection for DoL authorisations. Both Local Authorities and the Court of Protection struggled to bear the weight of the influx.

In August 2014, just a few months after the Cheshire West ruling, the then-President of the Family Division, Sir James Mumby, devised a streamlined process to provide a more speedy and manageable  response for non -contentious community DoL applications (Re X and others (Deprivation of Liberty) [2014]).  It was designed to address “the practical and procedural implications for the Court of Protection of what all informed opinion agrees is the large increase in its caseload which will follow in consequence of the Supreme Court’s decision”.

Essentially the streamlined process distinguishes between DoL cases to be dealt with out of the courtroom (i.e., ‘on the papers’), whilst allowing the court to give proportionate attention to cases where P may be objecting, or where there are other controversial issues which require more in-depth scrutiny by way of an oral hearing.

For non-contentious cases, it was considered in Re NRA & Ors [2015] not necessary for P to be joined as a party where a family member or friend was properly able to act as their Rule 1.2  Representative.

A new legal form was created to support the streamlined process. So, for a Re-X application the commissioning body submits a COPDOL11 form, along with all the supporting documentation.

Requirements for Re X and ‘Failed’ applications

Though the Re X process may be more streamlined (in comparison to when an oral hearing is required), there is still a significant amount of work required for the COPDOL11 application to be reviewed and for an order to be given. 

The evidence includes (but is not limited to) the mental capacity assessment (COP3), evidence of mental impairment (from a medical practitioner), care and support plans, details of the restrictions that amount to the deprivation, statement of best interests, wishes and feelings of P, consultation with other relevant persons, witness statements, and the draft order. 

Commissioning bodies must make proper enquiries and need to be thorough when presenting their evidence to the court, as this is the basis on which the appropriateness of following the Re X process is decided. Where the evidence is insufficient, further information will be requested, such as more comprehensive evidence around the restrictions in place and why these are proportionate, or further views may be sought from those involved with P.

If, from the evidence submitted, there are any suggestions that P might be objecting to the arrangements or other complexities with the case, and the Judge considers that the application is not suitable for the Re X process, then case management directions will be given for an oral hearing. 

Full and frank accounts of such objections must be made explicit within the submission. An example of where a Local Authority was heavily criticised for their failure to provide accurate information to the court is the case of LB Barnet v JDO & Ors [2019], and this demonstrates what not to do. 

An excellent guidance note by 39 Essex Chambers sets out how to make proper use of the COPDOL11 form, and in particular, what might trigger a subsequent “failed Re X” application: 

The [COPDOL11] form and guidance require the applicant to consider certain triggers which may indicate that the application is not suitable for the streamlined process. The triggers are:

(1) any contest by P or by anyone else to certain of the key requirements of the form (age, evidence of unsoundness of mind, lack of capacity, the care or support plan and best interests);

(2) any failure to comply with the requirement to consult with P and all other relevant people in P’s life and to canvas their wishes, feelings and views;

(3) any concerns arising out of information supplied in relation to P’s wishes and feelings/any relevant person, concerns about P’s litigation friend/Rule 1.2 representative, any matters suggesting that the matter needs particular judicial scrutiny;

(4) any objection by P;

(5) any potential conflict with a relevant advance decision by P or any decisions under an LPA or by P’s deputy;

(6) any other reason that should lead the court to that think that an oral hearing is appropriate. 

“Judicial Authorisation of Deprivation of Liberty” (July 2022) 39 Essex Chambers

 Concerns about 16/17 year olds

The guidance note quoted above continues: “In addition, following the Re KL [2022] EWCOP 24, it is prudent for any application in relation to a 16/17 year old to make clear that the applicant is simply using the form as a vehicle to provide the relevant information, and that they do not anticipate that the court will be able to determine the application without an oral hearing.“

Applications for DoL authorisations regarding 16–17-year-olds have spotlighted the worrying issues around practices in respect of restraint and transitional arrangements for young people in care settings. Often the arrangements are unstable and significantly restrictive:

One of the most concerning recent developments in social care has been the huge growth in the number of children with highly complex needs made subject to deprivation of liberty (DoL) orders.

For many, these have involved moving into unregistered placements – without Ofsted’s regulatory oversight – with severe restrictions placed on their movement and access to technology, constant supervision, often by multiple staff members and significant use of restraint (Community Care, 2023).

A seminar on Deprivation of Liberty and young people was delivered by 39 Essex Chambers in March 2023, where it was discussed that (in respect of 16-17 year olds who lack capacity) the Court of Protection is unlikely to consider the streamlined procedure as appropriate. The judgement of KL: A Minor (deprivation of liberty) [2022] gives a detailed set of reasons which would indicate the process wouldn’t be suitable. It was envisaged that in most cases, the court is going to ‘call in’ applications for an oral hearing, in which case the young person may be joined as a party with appropriate representation sought, adding further layers of judicial scrutiny. 

Delays in Re X: from a Social Work Perspective 

As part of the Re X application, the Rule 1.2 Representative is required to make a statement to the court outlining the representative’s views on whether the arrangements are in the person’s best interests, without which the application cannot proceed. Where there is no friend or relative who is able, appropriate, and willing to act as the Rule 1.2 Representative, a paid representative (such as an Independent Mental Capacity Advocate or another trained advocate) is required and due to resource constraints, this can be difficult to obtain causing a delay in the process.

I spoke with a local authority DoLS Team Manager who said that just before the start of the COVID-19 pandemic, applications were stayed for a considerable number of months. Applications are now proceeding in a much shorter timeframe, though there are ongoing issues around appointing a Rule 1.2 Representative when there are no appropriate friends and family willing to take on this role. She said:

“Some local authorities are commissioning advocacy services, whereas some are selecting not to do this – leaving this responsibility with the CoP and Ministry of Justice, who have recruited Court Appointed Visitors, which does not mirror the parallel role of the RPR in DoLS. When the individual subject to the DoLS is ‘unbefriended’ and would otherwise have no friends or family visiting, the paid representatives are generally expected to visit every 6/8 weeks – whereas a Court Appointed Visitor might only get to see the person once a year. This would leave such individuals with less visits and scrutiny than the current DoLS framework. Rule 1.2 Representatives need be spot-purchased or added into advocacy contracts by the authority to enable representation and support for this judicial process.” 

Additionally, she said it can be very difficult for the staff responsible for the applications to balance this against the demands of other work pressures, which can cause further delays. There is a call to make the Re X process more efficient and ADASS are currently consulting with local authorities to look at how this can be achieved. Any further improvements would be welcomed.

Final thoughts 

The role of the court is not to decide whether a person should be deprived of their liberty: it is to review whether a deprivation of liberty arising from the care arrangements is “a necessary consequence of the least restrictive available option that best promotes P’s best interests” (Re NRA & Ors [2015] EWCOP 59 para 41).

Both the DoLS framework and the Court of Protection are concerned with promoting autonomy and ensuring that people are not deprived of their liberty in an arbitrary manner. The task of ensuring that all people deprived of their liberty have the safeguards (of independent review and access to legal appeal) is an ongoing challenge. 

To give a flavour of the current pressures, the reported number of DoLS cases that were not completed as of April this year was an estimated 126,100 (NHS Digital, 2023) and there were 872 applications to the Court of Protection for judicial authorisation of deprivation of liberty in the first quarter of 2023, though this number is unlikely to be representative of the number of applications that should be made (39 Essex Chambers, 2023).

The Re X process seeks to ensure legal scrutiny in a proportionate measure to the level of complexity, for those who are deprived of their liberty where the DoLS regime is not an option. The Liberty Protection Safeguards were set to replace the current frameworks (covering all settings and applying to 16-year-olds and above) however this scheme has been ‘shelved’ for the foreseeable future (see here for more information).

The Court of Protection is currently reviewing the Re X application procedure. Local Authorities are urged to continue to review their processes to make best use of the resources available within the existing legal frameworks.

The streamlined application was devised to meet the minimum requirements for compliance with Convention and domestic law, by abbreviating the procedural requirements of the standard COP1 application process. The difference between the standard and the streamlined court procedures is the intensity of scrutiny. The COPDOL11 process is very definitely not a ‘rubber-stamping’ procedure but it relies on judicial antennae alone to identify from paperwork if/where further enquiry is required (KL: A Minor (deprivation of liberty) [2022] para 56)

In sum, although “Failed Re X” sounds as though something has gone wrong, in fact this is the Court of Protection working as it should – making proactive use of resources and using ‘judicial antennae’ to identify the cases that should not be decided simply on the papers and bringing them into the courtroom for full investigation.

Eleanor Tallon is an Independent Social Worker and Best Interests Assessor. She can be contacted via her website mcaprofessional.co.uk and found on LinkedIn. She also Tweets @Eleanor_Tallon

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^[i] _{The person may be permitted to go out unsupervised but if they didn’t return then steps would be taken to locate them and bring them back, see Stanev v Bulgaria [2012])}

^[ii] _{There are some circumstances where another legal route may be needed, particularly relating to 16–17-year-olds (professional legal advice would determine the appropriate pathway).}