2014 09 Incapacity

Wednesday 1 October 2014

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In the matter of DG and between David and Barry v Peter [2014] EWCOP 31 (Senior Judge Lush): DG was aged 93, had Altzheimer's disease and resided in a care home. David, Barry and Peter were his three sons. David and Barry applied for an order that they should be appointed as their father's deputy for property and affairs. They did not give notice to Peter, anticipating that he would object. The Court ordered that Peter be notified of the application. He filed an acknowledgement of service objecting and stating that he wished to be appointed as his father's deputy instead. The three sons were agreed that the three of them could not be appointed as deputies because they could not work together. The Senior Judge applied the s.4 MCA check-list and also directed himself that the Court would prefer the appointment of a family member, rather than a professional. He found that it was not necessary to appoint an independent deputy. He considered there was nothing to choose between the brothers in respect of: willingness to act, ability to act, qualifications, the nature of their relationship with their father, DG's past and present wishes and feelings and an earlier appointment of all three sons under a lasting power of attorney, DG's will, remuneration, security and conflicts of interests. The two factors which tipped the balance in favour of David and Barry were their geographical location (they lived close to and regularly visited the care home) and their attitude and approach to the care home, social services and staff members. They had been able to interact successfully with the carers and statutory agencies whereas Peter's relationships with almost everyone was fraught. The Senior Judge was satisfied that it was in DG's best interests for David and Barry to be appointed jointly and severally as his deputies for property and affairs. Judgment not yet on bailii.

Atudorei v Romania [2014] ECHR 947, Grand Chamber, European Court of Human Rights: the applicant was born in 1984. When she was about 20, she had been involved with an organisation Movement for Spiritual Integration into the Absolute and attended yoga classes organised by it. Her parents had arranged for her admission to a state-run psychiatric hospital, some distance from her home and not accessible by public transport. Her mother signed an informed consent on her behalf. She was diagnosed with evolving borderline disorder and given psychotropic drug treatment. She claimed breaches of Articles 3, 5 and 8 and other Articles of the European Convention,. The Romanian government submitted that she had been a voluntary patient and she disagreed. The Court found that she had been deprived of her liberty. The medical staff had exercised complete and effective control over her, by means of medication and supervision. She could not leave the institution without their permission. They had full control over who she could see or speak to. She was under continuous supervision. She had not consented. She was accordingly deprived of her liberty. Was the deprivation in accordance with the law? Her mother's consent was not a valid consent by or on behalf of the applicant. The authorities had not instituted the involuntary procedure which existed for hospitalisation. It followed that the deprivation was not in accordance with the law and that there was a breach of Article 5. Compulsory medical treatment, even if it is of minor importance, constitutes an interference with the right to respect for private life at Article 8. Treatment can only be administered without consent if there is an imminent risk of harm and even then the medical decision on treatment would have had to have been submitted to a procedural review commission for review. There was no consent, no imminent risk of harm, and no submission had been made to the review commission. Accordingly there was also a breach of Article 8. The applicant's submission that her treatment constituted inhuman or degrading treatment and therefore a breach of Article 3 was dismissed as manifestly ill-founded. She was awarded 15,600 euros. Click here for the judgment.

Ivinovic v Croatia [2014] ECHR 964, Grand Chamber, European Court of Human Rights: the applicant was born in 1946 and had cerebral palsy. In 1968 she had been deprived of her legal capacity. This had been restored in 1979. In 2009 a Social Welfare Centre had asked the Municipal Court to institute proceedings to deprive the applicant of her legal capacity to dispose of her assets. The Court appointed an employee of the Centre as the applicant's legal guardian and the guardian consented to the Centre's application. The Municipal Court considered psychiatric evidence and the applicant's objections to the application and to the psychiatric evidence. It made an order partially depriving her of her legal capacity, so stopping her from disposing of her money and other assets and from making independent decisions concerning her medical treatment. She alleged a breach of Article 8. The European Court reiterated that deprivation of legal capacity, or even part of a person's legal capacity, may amount to an interference with private life. Whilst Article 8 contains no explicit decision-making procedures, the process must be fair such as to ensure due respect of the interests safeguarded. The national authorities have the benefit of direct contact with all the persons concerned, so the Court's function is not to substitute itself for the domestic authorities but instead to review, in the light of the Convention, the decisions taken by those authorities. The extent of the national authorities' margin of appreciation depends on the quality of the decision-making process: the more serious any deficiencies, the more the conclusions of the domestic authorities can be open to criticism. The Court stressed that strict scrutiny is called for where measures with such adverse effect on an individual's personal autonomy, such as deprivation of legal capacity, are at stake. The domestic Court had relied on the psychiatric evidence and the applicant's financial situation. But it had not sought evidence from doctors who regularly saw the applicant. Nor had it established all the relevant facts which could elucidate the exact circumstances leading to the applicant's debts. Deprivation, even partial, of legal capacity should be a measure of last resort, applied only where the national authorities, after carrying out a careful consideration of possible alternatives, have concluded that no other less restrictive measure would serve the purpose. There was no indication that was the case here. Furthermore, the guardian employed by the Centre had not been independent and the applicant had been deprived of the opportunity to have independent representation. The national Courts had not followed a procedure which could be said to be in conformity with the guarantees under Article 8 and so there had been a violation. The Court awarded 7,500 euros compensation and 2,500 costs. Click here for the judgment.

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