2015 02 Incapacity

Sunday 1 March 2015

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AJ (by her litigation friend the Official Solicitor) v A Local Authority [2015] EWCOP 5, Baker J: This is an important case on local authorities’ duties under Art 5(1) and (4) ECHR. AJ was 88 and suffered from vascular dementia. Mr and Mrs C, who cared for AJ, placed her in a care home for respite with a view to AJ potentially remaining there on a permanent basis. AJ repeatedly asked to leave. An urgent authorisation was granted by the manager of the home the next day. Standard authorisations were subsequently granted in respect of the care home and a second care home to which AJ moved. Mr C was appointed as RPR. An IMCA was appointed under s 39D MCA 2005. Despite AJ’s known opposition to living in the care homes no legal challenge was made to the standard authorisations for several months. It was held that the local authority unlawfully deprived AJ of her liberty in breach of Art 5(1) ECHR by placing her in the care home without first obtaining authorisation under Sched A1 MCA 2005 or a court order to authorise the deprivation. Mrs C had told the local authority that AJ would not move to the care home willingly, so it was clear in advance of the move that AJ would be deprived of her liberty (paras 46 – 51). The local authority had also infringed AJ’s rights under Art 5(4) by wrongly appointing Mr C as AJ’s RPR when it knew or ought to have known that he would not represent or support AJ in challenging the standard authorisation; by failing to terminate Mr C’s appointment as RPR when he failed to take any or any adequate steps on AJ’s behalf to challenge the said authorisation; and by failing to take adequate steps to ensure that AJ’s challenge to the deprivation of her liberty was brought before the court expeditiously. The principles derived from ECHR and other main case-law in relation to Art 5(4) in this context are usefully set out at paras 35 – 38. The judgment sets out important lessons for practitioners arising from the litigation (paras 133 – 140), including that an RPR should only be selected or confirmed where he/she satisfies the criteria in reg 3 MCA (Deprivation of Liberty: Appointment of RPR) Regs 2008 and para 140, Sched A1 MCA 20015; that the appointment of an RPR and IMCA does not absolve the local authority from responsibility for ensuring that the incapacitated person’s Art 5 rights are respected; and where the RPR and IMCA have failed to take sufficient steps to challenge the authorisation the local authority should consider bringing the matter before the court itself. This would generally be a last resort as in most cases the person’s Art 5 rights should be protected by the combined efforts of a properly selected RPR and IMCA carrying out their duties with appropriate expedition. Click here for the judgment.

Re DD (No. 4) (Sterilisation) [2015] EWCOP 4, Cobb J: DD lacked capacity to make decisions about contraception and sterilisation. It was in her best interests that she should undergo sterilisation. The outcome was based on undisputed evidence that a further pregnancy would be significantly life-threatening for DD. The judgment provides detailed analyses of the legal basis local authorities’ safeguarding duties towards vulnerable adults (paras 22 – 28) of the test for capacity to make decision in relation to contraception and sterilisation. The court authorised forced entry to DD’s home and the use of restraint, acknowledging the significant interference with DD’s ECHR rights, and requiring that these steps should only be carried out by professionals who have received training in the relevant techniques, as a last resort, in the least restrictive manner possible, in accordance with care plans and risk assessments. Ms J, a Positive Behavioural Specialist, should be present, and the presence of the police was helpful in view of how DD responded to them.Click here for the judgement.

Deprivation of liberty in a person’s own home: The appeal to the Court of Appeal against the decision in Rochdale v MBC v KW [2014] EWCOP 45 has been allowed by consent. Click here for the information on the appeal available on Mental Health Law Online.

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