Appeals soar after secret courts are opened to public

Deprivation of liberty orders are contested following campaign by The Independent
  • @jerometaylor

The number of appeals against deprivation of liberty orders has surged in the aftermath of a controversial Court of Protection case championed by The Independent, new figures show.

Deprivation of liberty orders (DoLs) are used by local authorities and care homes to restrict the freedom of people who lack the capacity to make decisions. They are separate from powers that allow people to be sectioned under the Mental Health Act and are usually brought in when care workers believe someone could be at risk of harm – such as elderly people with dementia in care homes.

Last year The Independent led a media campaign to seek access to a Court of Protection case which concerned a severely autistic man who was removed from his father's care. In April the court ruled that Steven Neary, a 21-year-old from Uxbridge, had been unlawfully deprived of his liberty by the Borough of Hillingdon and should be returned to his father, Mark.

Most Court of Protection cases are in private but, due to our campaign, the media were allowed in, affording the public a much-needed glimpse into this often controversial world.

Figures from the Court of Protection show the number of appeals against DoLs trebled in the months after the Neary case. This suggests councils are being spurred into double-checking their procedures are legal, or that loved ones and carers, inspired by Mark Neary's success, are taking more cases to the court. The figures show that in the two years before the Neary case, the average number of DoL appeals was 15 to 20. But between July and September it rocketed to 52 and there were 22 appeals in October.

Lucy Series, a PhD student at the University of Exeter who has studied DoLs, believes the Neary case has unnerved local authorities.

"Although we will never know for certain, I speculate that this is a result of the widely publicised ruling in Neary v Hillingdon shaking supervisory bodies into proactively taking ongoing and irresolvable disputes to court."

Serious questions are being raised by care experts about the efficacy of the DoL system. A draft of an in-depth study by the Mental Health Alliance, seen by The Independent, says the current system is "not fit for purpose".

The report also criticises the cumbersome appeals process. Those sectioned under the Mental Health Act are entitled to a tribunal hearing within six weeks and are made aware of their legal rights.

But the only way to contest a DoL order is via the Court of Protection in London, which already has a massive backlog of cases. Appeals often take six months to a year to come to court.