Much needed landmark ruling on deprivation of liberty is not enough to improve situation for vulnerable people, says lawyer

The head of one of the area’s largest family and mental health law teams has warned that a ruling last Thursday by the President of the Family Division will lead to rapid changes in the law for vulnerable people and their families and needs to be matched by an increase in funding. 

John Lancaster, a partner with GHP Legal who acts for clients in North and Mid Wales, north-west England and Shropshire, says whilst the ruling on Deprivation of Liberty Safeguards (DoLS) highlights the continual judicial concern that the rights of vulnerable people should be protected, any benefits of this will be impeded by financial constraints restricting court time and legal aid.

Mr Lancaster spoke out after Sir James Munby ruled last week that the decision to deprive someone lacking mental capacity of their liberty should only be taken by a judge, not a court official, and should be judicially reviewed at least once a year. He further ruled that even when authorisation for a DoLS can be determined without a hearing there must still be an unimpeded right to request a speedy review.

Following this and other recent rulings the Law Society has estimated that the number of legal challenges to deprivation of liberty safeguards (DOLS) imposed by local authorities could surge ten-fold in the coming year.

“In March this year a Supreme Court ruling re-stated that people with disabilities have the same right as anyone else,” says Mr Lancaster. “Since then it has become increasingly clear that the number of people being deprived of their liberty on mental disability or impairment grounds has been vastly underestimated. 

“It is therefore quite right that these cases should be reviewed immediately, in line with the legal rulings. In reality, however, there are a number of serious issues which will prevent that from happening. 

“Firstly, it is only right and proper that vulnerable people who have been deprived of their rights should be entitled to legal aid to help them assert their rights. Instead, the legal aid currently available is strictly limited. 

“Some applications to the Court of Protection can be made with non means tested legal aid, other applications for legal aid are being means tested.  Clients face the prospect of having to pay in order to get an unjust decision about where they have been forced to live repealed. The courts have similarly been affected by budget cuts, which means that an increase in the number of applications for DoLS hearings will result in even longer waiting times.

“Those deprived of their liberty, and their families, will need to seek experienced legal advice as the law involved will be rapidly changing in response to the recent rulings.”