2015 01 Incapacity

Sunday 1 February 2015

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Essex County Council v RF & Ors [2015] EWCOP 1, District Judge Mort: P was aged 91 and suffered from dementia. ECC admitted breaches of P’s Art 5 and 8 rights for the whole of the 17 month period when he was detained in a dementia unit, except for 4 months when a standard authorisation was in place. The proceedings were triggered by RF and ECC was later substituted as applicant. ECC had failed to heed the presumption of capacity, failed to adopt a course that was the less restrictive of P’s rights and freedom of action, failed to have regard to independent evidence of his capacity by either ignoring it or immediately countermanding it, failed to take seriously or act on his consistently expressed wish to return home, failed to appoint an IMCA for him and failed to refer the matter to the court. The case involved a substantive breach of P’s rights in that were it not for the breaches he would have continued to live at home with support. A compromise of P’s claim for damages was approved placing the level of damages at between £3,500 and £4,600 per month. Click here for the judgment.

MASM and MMAM (by her litigation friend, the Official Solicitor) v LB Hackney and Homerton University Hospital NHS Foundation Trust [2015] EWCOP 3,Hayden J: The court considered whether the removal of P from the jurisdiction contrary to a declaration of her best interests could provide the basis for an application for committal for contempt of court. It held that the order in question was drafted in declaratory terms and could not trigger contempt proceedings; there cannot be defiance of a declaration or enforcement of one. The court gave guidance which included that where issues are highly specific or capable of being drafted as an order they should be so rather than as more nebulous declarations; in cases that require that P reside at a particular place the parties and the court should consider whether to reinforce that order by a declaration under s 15 MCA 2005 clarifying that it will be unlawful to remove P other than by court order; where the evidence suggests that there may be potential for a party to disobey an order or frustrate the plans for P approved by the court in his best interests, the Official Solicitor or local authority should consider inviting the court to seek undertakings or to make an order. Mr MASM had brought the proceedings, acquiesced to a declaration and then disregarded the outcome entirely. The judge was minded to require that he should pay the whole of the costs of the proceedings, subject to his counsel’s representations.Click here for the judgment.

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