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.
Thanks for bringing this case to our attention as it helps explain a current case I'm aware of and being handled by a colleague. Neither of us can understand what the legal basis of his detention is - I think I do now though! I intend to blog on this asap.
ReplyDeleteThe legal basis has to be that under the Mental Capacity Act 2005 as amended by subsequent legislation especially the Mental Health Act 2007. I have no doubt that this area of the law is so complex that cases ought to be handled only by absolute specialists.
ReplyDeleteAppalling case. Hopefully a topnotch lawyer will take up the matter pro bono.
ReplyDeleteHopefully Stephen's family will obtain legal aid and be represented if they are opposing the Welfare Deputy application. We shall have to see. The whole matter may well now disappear behind the rather secretive doors of the Court of Protection. However, there are some signs that the court is trying to make some of its decision making processes more transparent. For example, some of their judgments are now published in an anonymised form.
ReplyDeleteIf it involves a local authority paying for something, then it's important to realise the fight you're in. This is (to them) not about the needs of Stephen, but about saving money by transferring costs to someone else. If you fight them with any strategy other than making it cost them more to fight than to give in, you will lose.
ReplyDeleteI was involved in a statementing process for a teenager with very similar conditions some time back, where the parents simply could not fathom what was driving the utterly bizarre and similarly Kafka-esque actions of the council SEN team. The parents in question were fortunate to be sufficiently well-resourced not only to fight the council, but to pay for the care needed by the child: they were fighting for the access to services not available privately, and for the special treatment granted to statemented children. When they offered to pay for the residential care, the council's expensive barrister immediately settled and agreed to statement the child.
Follow the money.
Anonymous said...
ReplyDeletesteven nearys case is shocking and dol served on him also shocking, but the mental capacity act is also brutel and is legally kidnapping young adults they wait until the child reaches 18 then they attack, it was always my understanding that my son was coming home after he finised education then the social worker and his proffesonal buddies decided that its not in my sons best intreast he lacks the mental capacity 2 make decisions even though he ask 2 come home 2 stay and crys 2 see his mammy and daddy, so say his school and key worker.shame on my sons socialworker .... (a name was supplied but deleted by Blog Owner).