2010 11 Incapacity

Wednesday 1 December 2010

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The Ministry of Justice has published Memorandum to the Justice Select Committee: Post-Legislative Assessment of the Mental Capacity Act 2005. Click here to read the report.

Re AVS v A NHS Trust [2010] EWHC 2746 (COP) (Sir Nicholas Wall): directions were given in a case where there was a dispute about whether the patient was in a persistent vegetative state and further treatment ought to be provided to him to maintain his functions. The patient’s brother, who had his LPA and was a practicing solicitor, was nonetheless replaced as his litigation friend on account of his loss of objectivity and his poor relationship with the NHS Trust. Further directions were made. Click here for the transcript.

D v R and S [2010] EWHC 2405 (COP) (Henderson J): the court set out the matters which had to be understood by a donor whose mental capacity was in issue before he could decide whether to pursue a claim, brought on his behalf by his deputy, to set aside or recover gifts he had made as a result of alleged undue influence. Click here for the transcript.

A County Council v SB, MA, AA [2010] EWHC 2528 (Fam) (Sir Nicholas Wall): in the case of a 17-year old female, the subject of care proceedings and at risk of “honour-based” violence, disclosure was ordered of an expert’s report containing sensitive and potentially inflammatory information and despite the expert’s assurance of confidentiality. The Court underlined how exceptional the circumstances had to be for disclosure of relevant information to be withheld from the parties and considered relevant authorities. Click here for the transcript.

A Local Authority v DL, RL and ML [2010] EWHC 2675 (Fam) (Sir Nicholas Wall): the Court held (on an ex parte application by the local authority) that it had inherent jurisdiction to grant a “non-molestation injunction”, protecting elderly and vulnerable parents from their son, who lived with them, even though the parents did not lack capacity and could in theory themselves have instructed solicitors to take proceedings for their protection. Click here for the transcript.

A County Council v MB, JB, A Residential Home [2010] EWHC 2508 (COP) (Mr Justice Charles): the Court provided detailed guidance about the proper implementation of DOLS and, in particular, what should be done when the urgent/standard authorisation procedure breaks down, but still needs to be DOL:

100. Lessons to be learned / guidance / good practice. These are:

  • In the case of an "existing detention" there can only be one urgent authorisation and therefore after the end of the first urgent authorisation it can only be authorised by either (a) a standard authorisation, or (b) a court order.
  • All involved should be very aware of the relevant periods of an existing authorisation and time the steps to be taken to continue it, or address problems as to the continuation of a deprivation of liberty, before it expires.
  • The "period of grace" or extension to the end of the existing standard authorisation (see paragraph 62(3)) is the period provided by DOLS to take appropriate steps if the supervisory body is precluded from giving a standard authorisation if all of the assessments are not positive. It is therefore the period provided to the supervisory body and the managing authority to take the appropriate steps to address a difference of opinion with an assessment.
  • Assessors should have regard to the alternatives that are practically available and in the case of the best interests assessor their ability to set the maximum length of any standard authorisation (see paragraph 51(2)). This is relevant to the continuation of a standard authorisation, for a short time, whilst changes or assessments are considered or carried out.
  • The court is the forum identified by DOLS and the MCA to resolve (i) a breakdown of the authorisation of a deprivation of liberty by the authorisation process set by Schedule A, and (ii) whether P can lawfully be deprived of his liberty if an authorisation (or a further authorisation) cannot be granted or is disputed.
  • Applications can be made to the court under s. 21A in respect of authorisations that have been granted and the section specifies the limited extent of the relief that can be given thereunder.
  • It is unlikely that s. 21A will be applicable where the problem is that an authorisation or a further authorisation cannot be given. But then, and in other circumstances, an order that authorises a deprivation of liberty can be sought under ss. 4A, 16, 47 and 48 from the court.
  • If they are urgent, such applications to the court can be brought before the High Court Judge in the Family Division designated to hear urgent applications in and out of court hours.
  • Supervisory bodies and managing authorities should take steps (i) to bring the statutory provisions relating to applications to the court to the notice of their decision makers, and (ii) to ensure that they are aware that pending a court decision they can either:

i) rely on s. 4B, and that to do so they should expressly address the test set out therein and record their reasoning as to why they believe it is satisfied, or

ii) seek an interim order from the court to authorise a continuation of an existing detention.

  • An application to the court can be made and dealt with as a matter of urgency and supervisory bodies and managing authorities should take steps to ensure that their decision makers know, or have easy access to the current methods to contact (i) the Court of Protection and the DoL team at the court (as to which the telephone number in the Practice Direction supplementing Part 10A of the COP Rules is out of date), and (ii) the Family Division of the High Court to make an urgent application to the Applications judge during court hours and the Duty judge out of court hours.

Click here for the transcript.

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