2011 04 Incapacity

Sunday 1 May 2011

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The Office of the Public Guardian’s website has closed: Content on the OPG website is now available at www.direct.gov.uk/mentalcapacity. Information for professionals can be found at www.justice.gov.uk/about/opg.htm. This website contains orders made by the Court of Protection, the Mental Capacity Act Code of Practice, information about costs and other guidance.

A v A Local Authority, A Care Home Manager and S [2011] EWHC 727 (COP) (Sir Nicholas Wall, President): an 85 year old man (“A”) was subject to a deprivation of liberty authorisation at a nursing home. His litigation friend, the Official Solicitor, applied to vary the terms of the authorisation. The OS submitted that A might not lack capacity and the proportionate step was a new assessment of A’s capacity and his best interests. The Respondent opposed the application on the grounds that there was adequate evidence that A continued to lack capacity and that the authorisation should continue. The Court found that the MCA created safeguards to protect those deprived of their liberty against arbitrary action, that A wished to challenge the authorisation and that the assessment as requested by the OS was necessary in order to permit A, through the OS, to do so. If the authorisation supported the Respondent’s position, the case could properly be dealt with by way of a consent order. Click here for the transcript.

R (W) v Croydon LBC [2011] EWHC 696 (Admin) (Ouseley J): the local authority proposed to terminate a residential placement for a 21-year old who had autism, severe delay in language development which manifested itself in a range of difficult behaviour, and severe language difficulties. The local authority was required to consider the young adult’s past and present wishes and feelings, and to consult anyone engaged in caring for him or interested in his welfare as to what would be in his best interests (s.4 MCA 2005). The local authority carried out an assessment in June 2010 and invited the parents to a best interests meeting which took place on 29 July 2010. Neither the parents nor the care provider had been involved in the assessment. The parents first saw it on 29 July 2010. Ouseley J held that the consultation was inadequate. The parents had not been involved in the assessment. That deficiency could have been made good if there had been a subsequent opportunity for the assessment to be thoroughly discussed, at a time when the proposals were still formative, with sufficient reasons given for the proposals and sufficient time to allow intelligence consideration and response. The parents did not have sufficient time to consider and respond to the assessment. The care provider should also have been consulted and its views would have been valuable. The decision to terminate was quashed.Click here for the transcript.

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