court of protection and deprivation of liberty safeguards case law update - neil ward - september...
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Deprivation of Liberty
Safeguarding & MCA
Court of Protection case law
updates
WCC v GS – how to manage ‘contact contracts’
Manchester City Council v G & E & F - cost penalties for ‘unreasonable’
approach to Court of Protection cases
PH v A Local Authority & Z Limited & R - role of expert
and factual witnesses on assessing capacity
WCC v GS
83 year old female
Dementia Hospital for cellulitis
Visited by son
Inappropriate behaviour Discharged
Care home WCC issued proceedings
Managing contact
capacity to decide where
to live?
should she live at the
care home?
how to manage contact?
capacity to decide where
to live?
should she live at the
care home?
how to manage contact?
does not have capacity
to decide
should live in care home
review behaviour of son
No extensive fact-
finding investigation
Don’t need a costly &
resource heavy
hearing
Behaviour was
inappropriate
Son refused
to sign
LA costs learn
ing d
iffi
cult
ies
pla
ced in r
esi
denti
al
unit
in A
pri
l 2009
no c
onta
ct
wit
h
care
r fo
r fi
ve m
onth
s
unla
wfu
lly d
epri
ved
of
libert
y
LA o
rdere
d t
o p
ay
cost
s of
pro
ceedin
gs
indem
nit
y b
asi
s
learn
ing d
iffi
cult
ies
pla
ced in r
esi
denti
al
unit
in A
pri
l 2009
no c
onta
ct
wit
h
care
r fo
r fi
ve m
onth
s
unla
wfu
lly d
epri
ved
of
libert
y
LA o
rdere
d t
o p
ay
cost
s of
pro
ceedin
gs
indem
nit
y b
asi
s
family costs
learn
ing d
iffi
cult
ies
pla
ced in r
esi
denti
al
unit
in A
pri
l 2009
no c
onta
ct
wit
h
care
r fo
r fi
ve m
onth
s
unla
wfu
lly d
epri
ved
of
libert
y
LA o
rdere
d t
o p
ay
cost
s of
pro
ceedin
gs
indem
nit
y b
asi
s
official solicitor costs
learn
ing d
iffi
cult
ies
pla
ced in r
esi
denti
al
unit
in A
pri
l 2009
no c
onta
ct
wit
h
care
r fo
r fi
ve m
onth
s
unla
wfu
lly d
epri
ved
of
libert
y
LA o
rdere
d t
o p
ay
cost
s of
pro
ceedin
gs
indem
nit
y b
asi
s
LA costs
LA costs learn
ing d
iffi
cult
ies
pla
ced in r
esi
denti
al
unit
in A
pri
l 2009
no c
onta
ct
wit
h
care
r fo
r fi
ve m
onth
s
unla
wfu
lly d
epri
ved
of
libert
y
LA o
rdere
d t
o p
ay
cost
s of
pro
ceedin
gs
indem
nit
y b
asi
s
• No order as to costs
• Judge may depart if
circumstances justify
Conduct before and after
proceedings and at court
Has a party succeeded in
the case?
Court of Appeal
“a Judge has a feel of a case the Court of Appeal
cannot hope to replicate” and would only
intervene if the Judge had done something
“seriously wrong”
Court of Appeal found Judge had not done
anything “seriously wrong” and so upheld
Court costs decision
Court of Appeal
“Local Authorities who have
done their job properly and
abide by the law have
nothing to fear”
Court of Appeal
“very difficult judgments” and the Court
was not going to impose costs burden on
Local Authorities “just because hindsight
demonstrates it got judgments wrong”
Local Authority had a “blatant
disregard” of the Mental Capacity Act
Arguments by Local Authority
that MCA was complex, and
staff had not been trained, were
dismissed (ignorance is no
excuse)
Court accepted may have needed
a hearing anyway but it would
have been “significantly shorter”
had the Local Authority acted
differently
PH V LA
49 year old male
Huntingdon’s disease
Standard Authorisation
Capacity?
Expert said yes
3 treating clinicians said no
Court
Dr Rickards' expertise is not questioned but report
seemed to Judge “somewhat superficial” …
… Overall expertise of the treating clinicians gave “greater experience of PH as a patient”
than expert …
… accepted their evidence that PH had no true
insight into what it would be like to return home
• http://bjp.rcpsych.org/
• www.mentalhealthlaw.co.uk
• http://www.bailii.org
• www.bjlegaltraining.com
• www.law-less-ordinary.com
• www.brownejacobson.com
neil.ward@brownejacobson.com
0121 237 3927
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