Deprivation of Liberty, Re X cases, “unsoundness of mind” and medical evidence: a reminder for commissioners

A new case will be of interest to health and care professionals dealing with Deprivation of Liberty cases in the Court of Protection – whether under the Re X-procedure or generally where a person’s deprivation of liberty is being authorised under article 5 Human Rights Act 1998 or section 16 Mental Capacity Act 2005 welfare proceedings in the Court of Protection.

In Stockport Metropolitan Borough Council v KB & Or, the judge was not concerned with a Re X application or COPDOL11 – as should have been the case – but a COP1 application because several applications made by Stockport MBC had been rejected because of the failure by the MBC to provide medical evidence that confirmed P suffered from “unsoundness of mind”.  In this case, KB suffered from a lifelong learning disability that deprived her of her capacity to make decisions about her residence and care. No one had any doubts that she lacked capacity, and that the proposed arrangements were in her best interests. However, the MBC failed to submit medical evidence to confirm that KB suffered from “unsoundness of mind”.

Health and care professionals will know that the streamlined procedure often referred to as the “Re X procedure” is commenced by issuing a COPDOL11 application. It was introduced for those cases for which there was little complexity and dispute as to the requirements for the authorisation of P’s deprivation of liberty.

COPDOL11 includes Annex A which requires evidence in support of an application to authorise a deprivation of liberty that comprise various tick boxes to confirm assessment of capacity together with confirmation that a COP 3 (the capacity assessment) or equivalent is attached to the form. This needs to confirm that P has been medically diagnosed as being of “unsound mind” and attaches written evidence from a medical practitioner.

Interestingly the judge noted: “I do not consider that a judge making a decision as to whether P is of unsound mind has to see those exact words used by a clinician in the evidence given.” However, the judge confirmed that what he must receive is “reliable evidence of mental disorder.”

However, the judge makes clear that while he has treated this case as a COP1 he has not sought to provide guidance but says that what he concludes “may be of wider application”.

So, what did the judge conclude:

  1. “In the context of applications to authorise a package of care, which inevitably results in P being deprived of his or her liberty, the Court must be satisfied that P suffers from unsoundness of mind. However, these words have no mystical powers; they are not an “open sesame” giving access to the Article 5 cave. They refer to a mental disorder. It is for the court to be satisfied that P is of unsound mind on the basis of the evidence before it. Provided that evidence satisfies the Court that P has a mental disorder, and subject of course to the other essential requirements also being satisfied, the Court may authorise detention.”
  1. “The European Court of Human Rights (ECtHR) jurisprudence is clear that “unsoundness of mind” has to be proved by those seeking to assert it on sound medical evidence. Usually that evidence will come from a medical doctor, generally a psychiatrist or General Practitioner. Whether, in appropriate circumstances that evidence could come from a psychologist, mental health nurse, or other similar specialist clinical expert may be a moot point. It is one I do not have to decide in this case. I simply direct that the Applicant needs to commission and instruct a registered medical doctor, either a psychiatrist or a GP, to review KB’s case and provide a report dealing with her diagnosis as well as whether that condition causes her to lack capacity to make relevant decisions, as well as the likely duration of that condition.”


This decision clarifies what is meant by “unsound mind” and the correct professional evidence required in deprivation of liberty applications. It also serves as a reminder of the Re X procedure, its requirements and the “critical pointers” to cases being taken off the Re X route. So, where there are complex issues over diagnosis or where there is substantial disagreement over best interests, the COPDOL11 is not the appropriate route.

If you would like to discuss any of the issues raised in this blog and or require support with training, Re X procedure, including providing the correct capacity assessment, do contact us. We have an experienced and expert team running hundreds of Re X matters.

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