Senior judge warns of ‘immense burden’ over care provision

The most senior family judge in England and Wales has warned of the consequences of a “landmark” Supreme Court ruling on the rights of disabled people living in care facilities.

Sir James Munby, President of the Family Division of the High Court and President of the Court of Protection, said there would be financial implications for local authorities and significant implications for the administration of justice.

He outlined his thoughts to specialist lawyers at a public hearing in the Court of Protection – which handles cases involving sick and vulnerable people – in London.

The ruling by the Supreme Court – the highest in the UK – was made in March and clarified the circumstances in which disabled people were legally deprived of liberty.

Sir James said the ruling meant that the number of disabled people being deprived of their liberty was “vastly greater” that previously assumed.

And he said there was likely to be a “very significant” increase in the number of “deprivation of liberty” cases Court of Protection judges would be asked to analyse and monitor.

He said there were “implications” for the court’s “ability to cope” and warned that an “immense burden” could be placed on local authorities with responsibility for the welfare of disabled people.

Sir James said he was keeping watch on the number of cases coming into the Court of Protection.

And he said he had organised today’s hearing in an attempt to map the new terrain and bring “administrative order”.

Another hearing – where Sir James and lawyers will analyse issues in more detail – is due to take place in the next few weeks.

Campaigners have already called on the Government to issue guidance to care providers and local authorities in the wake of the Supreme Court ruling.

Charities said Supreme Court justices had provided clarity about when disabled people were being deprived of liberty under the terms of mental health legislation.

Lady Hale, deputy president of the Supreme Court, said in the ruling that disabled people had the same human right to “physical liberty” as anyone.

And she said the fact that disabled people might be deprived of liberty in care facilities where living arrangements were comfortable made no difference.

She said a “gilded cage” was “still a cage”.

Seven Supreme Court justices ruled that three disabled people who lived in care facilities had been “deprived of their liberty”.

They had analysed the cases of two sisters with learning difficulties and a man with cerebral palsy at a hearing in London.

None of the people involved was identified but the justices said the local authority with responsibility for the sisters was Surrey County Council and the local authority with responsibility for the man was Cheshire West and Chester Council.

The justices said they had considered criteria for judging whether living arrangements for mentally incapacitated people amounted to a “deprivation of liberty”.

They said such deprivation had to be authorised under the terms of the 2005 Mental Capacity Act and living arrangements subjected to regular independent checks.

Campaigners said the ruling followed a report by a House of Lords Select Committee, which concluded that the Mental Capacity Act was failing.

A lawyer representing the Health Secretary Jeremy Hunt was at today’s hearing before Sir James.

Lawyers representing people involved in cases in a variety of locations – including Sunderland, Northampton, Cornwall, Rochdale, Northumbria and Worcestershire – were also in court.

“I want to try to bring some measure of administrative order and proper process into play in the light of the ramifications of the recent judgment of the Supreme Court,” Sir James told lawyers.

“There will be a very significant increase in the number of applications being made in the Court of Protection in relation to deprivation of liberty (cases).”

He added: “Numbers of deprivation of liberty (cases) are vastly greater than previously assumed.”

Sir James said there were “implications for the court’s ability to cope” and warned of an “immense burden on local authorities”.

He said there were implications for local authority finances and possible “legal aid problems”.

“A period of uncertainty is inevitable,” he said. “The long-term implications are so significant.”

Sir James added: “The fact is if 10,000 applications came in tomorrow they could not be dealt with. That is the reality I am afraid.”

He said that could have implications for the UK’s obligations to comply with European legislation.

Sir James said another hearing would take place in about four weeks – and he said that hearing would also be staged in public.

He added: “It raises very serious questions about the administration of justice and public administration generally.”

Sir James said public hearings meant that there could be “proper discussion”.

He ruled that none of the people at the centre of any care cases being considered by judges could be identified.