Thursday, 9 December 2010
Deprivation of Liberty: the worrying case of Stephen Neary
There is a complex legal history to detention of persons who lack capacity. At this stage, Law and Lawyers wishes to draw attention to the case which appears to be extremely unsatisfactory. The present law on the matter is almost unbelievably convoluted.
More about Stephen's case may be read at the Anna Raccoon blog and Law and Lawyers (L & L) urges all readers to consider what is written there. There is also a petition. See "The Orwellian Present - Never mind the Future." L and L is grateful to the excellent CharonQC blog for highlighting this problematic case.
A "Deprivation of Liberty" decision can be challenged in the Court of Protection. Please see the legal material below for more information on this process. Under Court of Protection Rules (issued in 2007) hearings are normally in private (Rule 90) but can be public in some circumstances (Rules 92 and 93). Persons wishing to issue such a challenge should first seek expert legal advice. Funding may be available for legal help and legal representation could be applied for in some deprivation of liberty cases. It is not expected that this area will be unduly altered by the Ministry of Justice's recent legal aid proposals - see paras. 4.92 to 4.94 here.
Some Legal Materials:
Mental Capacity Act 2005 Care Quality Commission - Mental Capacity Act and Deprivation of Liberty
Mental Health Act 2007 - which amended the 2005 Act in the light of the European Court of Human Rights judgment in HL v UK 2004.
Department of Health 2010 - Deprivation of Liberty Safeguards
Court of Protection Rules 2007
Court of Protection - HMCS website - link to Practice Direction on Deprivation of Liberty Applications under the Mental Capacity Act 2005 s21A.
Mental Health Law Online
Legal Services Commission - Legal Help and Legal Representation - Guidance
The Court of Protection:
Further information about the court is on the Public Guardian website. The Court issued a report covering the first 2 years of its existence - here. There has been trenchant criticism of the court and its processes - see, for example, Family Law article by barrister Moira Sofaer.
Information about autism:
National Autistic Society
Autism Independent UK
Addendum 12th December: Law and Lawyers is grateful for the comment about this post on the Jack of Kent Blog. Please see - "Bad Law, or there can be two sides to a story" - Jack of Kent Blog - 11th December. In all legal matters there are always two sides (maybe more) to any situation and the law and lawyers have to adopt as objective a stance as possible. This why the post above merely sought to draw attention to the case which certainly appears to be extremely unsatisfactory.