mental capacity act and dols case law update - ben troke - july 2012
DESCRIPTION
In this session Ben looks at… Life after Cheshire Article 5 in European Court of Human Rights – Austin Deprivation of Liberty by Police – ZH DOLS case – EM Medical treatment – re E (anorexia) Inherent jurisdiction - DLTRANSCRIPT
Mental Capacity Act and DOLS update • Life after Cheshire…
• Article 5 in European Court of Human Rights – Austin
• Deprivation of Liberty by Police – ZH
• DOLS case – EM
• Medical treatment – re E (anorexia)
• Inherent jurisdiction - DL
• News and resources
• concern about the ‘Cheshire’ test in practice
• best to avoid “purpose / motive / intentions / reasons”
• focus on the concrete situation
• err on side of caution
lawful DOL
no
DOL necessary
“purpose” no
DOL
“everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save
in the following cases and in accordance with a
procedure prescribed by law”
Article 5 ECHR
• lawful arrest to bring to court
• lawful detention of … persons of unsound mind
lawful DOL
no
DOL necessary
“purpose” no
DOL
• European Court of Human Rights
15 March 2012
• rejected appeal – No DOL
• purpose / motive cannot be relevant to
whether there is a DOL
• “specific context and circumstances”
should be considered … (para 58-59)
• no common law “necessity”
defence survives if MCA s5-6
applies and is not met
• “purpose” and “intention”
relevant, but 40 minutes
restraint was held a DOL, as
“hasty, ill informed and
damaging”
• need to collaborate
between police and carers
• breach of Art 5 and Art 3
• compensation awarded
92 year old man –
cognitive impairment
standard authorisation in
a care home
EM wants to go home –
saying son will care for him
son, apparently, will not
capacity in dispute
Insert image
BMI: 11 – death imminent
does not seek death, but above
all does not want to eat or be fed”
OS sought declaration she lacked
capacity and for force feeding
commit to force feed to BMI > 17 –
over 1-2 years
32yo woman – anorexia, PD &
alcohol abuse
• previously (but not now)
detained under MHA
• dealt with under MCA –
held lacks capacity
• previously purported ADs
to refuse feeding –
declared invalid due to
lack of capacity when
made
• best interests?
– Autonomy vs Sanctity of
Life
living with DL - adult son -
in Mr L’s property
they all have capacity to make
decisions
LA concerned that DL is
aggressive and bullying
“inherent jurisdiction” to make
orders to protect Mr & Mrs L
Mr L (85yo)
Mrs L (90yo) - physically disabled
• DL argued – MCA is definitive
• LA said could be a new “Bournewood Gap”
• MacFarlane LJ – inherent jurisdiction not
explicitly abolished by MCA
• inherent jurisdiction not
explicitly abolished by
MCA, and “continues to be
available to act as ‘the
great safety net’…”
• when and how?
Draft Care and Support Bill
- 11 July 2012 • consultation until 19 October 2012
• duty on LAs to investigate suspected abuse / neglect (cl 34)
• establish SABs (cls 35-36)
• repeal s47 NAA 1948
• but
separate consultation on new
“safeguarding power”
• open until 12 October 2012
DOLS statistics –
March 2012
• nil applications
• inconsistency
CQC report on DOLS –
March 2012
“there continue to be cases where people who lack
capacity are deprived of their liberty without regard to
their human rights… the safeguards are no longer new and
both providers and supervisory bodies have had ample
time to train staff and develop policies”
CQC report on DOLS
Mental Health Alliance –
May 2012
• “implementation of DOLS has been extremely uneven…”
• recommends “major review”
www.bjlegaltraining.com
http://thesmallplaces.blogspot.co.uk/
http://autonomy.essex.ac.uk/
http://www.mentalhealthlaw.co.uk/Main_Page
Ben Troke | 0115 976 6263 | [email protected]