deprivation of liberty safeguarding & mental capacity act, mental health act march 2012
DESCRIPTION
Neil ward delivers this session looking at the cases: ‘A Local Authority v H [2012] EWHC 49’ ‘K v LBX [2012] EWCA Civ 79’ ‘GJ v Foundation Trust 2009 EWHC (Fam) 2972’ ‘C v Blackburn with Darwen Borough Council (2011)’TRANSCRIPT
Deprivation of Liberty
Safeguarding & Mental Capacity
Act / Mental Health Act
Court of Protection case law update
29 year old female, lives in one
to one residential care
“very early and very deep
degree of sexualisation”
found to have no capacity to
litigate
mental health disorder and
learning disabilities
she lacked capacity to enter
into sexual relations
• five previous cases were not binding and were
irreconcilable
• he therefore devised his own test
understanding the mechanics
of the physical act
understand the risk of
pregnancy
show some grasp of the
issues of sexual health
• recognised that there is a moral aspect to sexual
relations but did not believe that it is possible to
design a test to define this
• does P understand that he/she has a choice to
say no?
“that seems to be an important aspect of capacity and as
far as it is really possible to go over and above an
understanding of the physical component”
“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
• the case continues to add to the confusion
and complexity of issues of capacity to
enter into sexual relations
“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
• apparently both the local authority and
the
official solicitor opposed the Judge
considering the moral and emotional
issues,
but he did so anyway
28 year old man with learning
disabilities living with his father
case appealed on the approach of
Judge Theis
fathers concerns over moving
into a residential home too quickly
judge authorised a trial period of
a placement
28 year old man with learning
disabilities living with his father
case appealed on the approach of
Judge Theis
fathers concerns over moving
into a residential home too quickly
judge authorised a trial period of
a placement
“family life that L clearly has with
K and his brother should not be the
starting point as submitted by
Mr Armstrong”
28 year old man with learning
disabilities living with his father
case appealed on the approach of
Judge Theis
fathers concerns over moving
into a residential home too quickly
judge authorised a trial period of
a placement
“family life that L has with K…
shouldn’t be the starting point …”
“the starting point should be the normal assumption that
mentally incapacitated adults will be better off if they live
with the family rather than an institution … other things
being equal, the parent, if he is willing and able, is the most
appropriate person to look after a mentally incapacitated
adult, not some public authority, however well meaning and
seemingly well equipped to do so”
• no place in s 4 of the Mental Capacity Act
to support this approach
• considered Article 8 right to family life
• did not use any one point as a “starting point”
• “several years before the Act came into force”
• nothing in Neary
“it is difficult to see what a starting point would
have added to the careful process in which this
Judge engaged … it may have given rise to a
rigidity and complexity that would have detracted
her from balancing the various factors”
• father’s arguments that this would give
free
rein to local authorities to interfere
arbitrarily in family life were not well
founded
• local authorities usually exercise their
rights and responsibilities carefully and
after much consideration
overlap
Mental Capacity Act / Mental Health Act
• even if a patient is formally detained under the
MHA, the MCA still applies
• patients under the MHA may still have capacity
to make decisions
• Charles J said that the MHA must have “primacy”
• recently the extent of this was challenged by the
Department of Health in D N v Northumberland Tyne &
Wear NHS Foundation Trust (2011) - the DoH said it
interpreted Charles J as only talking about this in the
context of a patient refusing mental health treatment.
No judicial authority on this
45 y
ear
old
male
- n
o
capacit
y t
o lit
igate
suff
ere
d inju
ries
learn
ing d
isabilit
y,
menta
l healt
h p
roble
ms
mult
iple
suic
ide
att
em
pts
pre
vio
usl
y
lives
in a
care
hom
e –
guard
iansh
ip o
rder
att
em
pte
d t
o leave t
he
care
hom
e
standard
auth
ori
sati
on
under
DoLS
declined
declined
“it is a truly unhappy state that the law
governing fundamental rights and welfare of
incapacitated people should be so complex”
• is C ineligible for DoLS?
• no conflict between Standard Authorisation and
guardianship
• is C being deprived of his liberty?
• no - judge found that there was in fact no
deprivation of liberty
• no realistic alternative (contrast with Neary)
• can the court make orders on the terms of
guardianship
• no – court has no authority to interfere with
guardianship – s8 exclusive
[email protected] 0121 237 3927