Search Hill Dickinson

Recent guidance on COPDOL11 applications

Stockport MBC -v- KB

Doctor with paperwork | Hill Dickinson

Recent guidance on COPDOL11 applications: Stockport MBC -v- KB

In the recent case of Stockport Metropolitan Borough Council -v- KB [2023] EWCOP 58, HHJ Burrows provided guidance regarding the need to establish a mental disorder when making a COPDOL11 application for a deprivation of liberty in the community under the Re X streamlined procedure.  

In this case Stockport Council submitted no medical evidence of unsound mind because P’s GP refused to use the phrase “of unsound mind” as a diagnostic label. This wording flows from Article 5 of the Human Rights Act 1998.  HHJ Burrows directed the council to commission a registered medical doctor to review P’s case, provide a diagnosis and confirm whether that diagnosis caused P to lack capacity to make the relevant decisions. 

HHJ Burrows confirmed that the phrase “of unsound mind” has no “mystical powers” and it simply refers to a mental disorder.  Therefore, it does not matter if medical evidence presented to the court uses those words because it is for the court to be satisfied that P is of unsound mind based on the evidence before it. 

What the court must have to authorise a deprivation of liberty is “reliable evidence of a mental disorder” which amounts to the same thing. In order to qualify for the streamlined procedure, this evidence must come from a registered medical practitioner such as a GP or a Psychiatrist. 

HHJ Burrows clarified that any medical practitioner who does not consider themselves able to certify that a patient is “of unsound mind” or has a mental disorder, must not do so. 

What does this mean going forwards?

  • GPs can be reassured that mental health assessments do not have to be completed by a s.12 MHA approved doctor.
     
  • The Article 5 phrase “of unsound mind” does not have to be used by the assessing doctor if they feel uncomfortable with the wording as long as there is evidence of a mental disorder.
     
  • The COPDOL11 process requires evidence of a mental disorder to be provided by a registered medical practitioner.
     
  • To avoid delays in COPDOL11 applications, we recommend that organisations continue to ask medical practitioners for confirmation that P is “of unsound mind”. However, when this is not possible organisations can be reassured that the phrase is not an essential requirement. 

Mental capacity, DoLS and Court of Protection

Leading experts 

Hill Dickinson LLP are the national leading experts on the Mental Capacity Act 2005 (MCA) and deprivation of liberty (DoLS), with more lawyers independently ranked in directories as leading practitioners in this field than any other firm.

Our lawyers have been involved in the leading case law, including at Court of Appeal and in the Supreme Court, as well as being involved in the development of national policy, guidance and training.   

You will be aware of the announcement on 5 April 2023 by the Department of Health and Social Care that the implementation of the Liberty Protection Safeguards (LPS) will not go ahead this side of a general election (anticipated to be in Autumn 2024).

This leaves us with all the challenges with the current system that LPS was supposed to address, in particular:

  • Dealing with those outside the scope of DoLS – people deprived of their liberty in the community or under the age of 18.
  • Even where DoLS applies – over the age of 18 and only in care homes and hospitals – the gulf between the demand on the system and its resources, leaving a huge backlog and a delay in authorisations.
  • Hospital cases, in particular, are not typically prioritised by local authorities, and there is also real uncertainty in how to apply the law on deprivation of liberty in a medical treatment context.  

To view our video resources relating to MCA/DoLS click here