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The deprivation of liberty safeguards part 3: how the authorisation regime safeguards are working
- Authors:
- PEARCE Nasreen, JACKSON Sue
- Journal article citation:
- Family Law, 42, May 2012, pp.567-572.
- Publisher:
- Jordan
This article examines whether amendments to the Mental Capacity Act 2007, designed to provide a regime of safeguards for those who lack capacity and who are deprived of their liberty are working. It explores how the new regimes are working, by reference to three key cases, and how the Court of Protection operates in scrutinising attempts to circumvent the statutory provisions. The article discusses the eligibility for mental capacity, the appointment of Independent Mental Capacity Advocates, and the division of roles of a managing authority and supervisory body. It also describes the purpose of the deprivation of liberty safeguards and the Court of Protection, and the related decision making processes. The article also offers guidance for best practice when dealing with mental capacity cases.
The Deprivation of Liberty Safeguards part 6: definition of deprivation of liberty
- Authors:
- PEARCE Nasreen, JACKSON Sue
- Journal article citation:
- Family Law, 42, August 2012, pp.999-1004.
- Publisher:
- Jordan
Although detention and restraint of those who lack capacity may be considered necessary in their best interests in some circumstances, it may infringe rights under Art 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 unless it is carried out in accordance with law. The Mental Capacity Act 2005 (MCA 2005) provides the legal process which must be followed to render this lawful but fails to define what amounts to deprivation of liberty (DOL). Decision makers have to routinely agonise over when it could be said that the fine line between acts which may be considered legitimate restraint and those which amount to DOL has been crossed. This involves a trail through case -law for guidance. This article sets out rights which are protected under Art 5 of the European Convention and extracts guidance on the meaning of DOL through an analysis of leading case-law before and since the MCA 2005 came into force. It also sets out the guidance contained in the DOLS Code of Practice.
The Deprivation of Liberty Safeguards Part 5: general jurisdiction and role of the Court of Protection
- Authors:
- PEARCE Nasreen, JACKSON Sue
- Journal article citation:
- Family Law, 42, July 2012, pp.851-855.
- Publisher:
- Jordan
The previous 2 of this series of related articles described the administrative regime (Deprivation of Liberty Safeguards) which must be followed by hospitals and care homes looking after people who lack capacity and who cannot give consent to their living arrangements. The regime also prescribes a procedure available to the person who lacks capacity and their representatives both for seeking internal reviews of the administrative decisions made and for challenging the decision in the Court of Protection (COP). However steps may sometimes need to be taken which do not fall within this regime, for example in the event of emergencies or where other welfare issues require resolution. This article considers the circumstances in which acts done which amount to restraint or deprivation of the liberty (DOL) of a person who lacks capacity may be justified, the limitations which are imposed before such restraint or DOL may be exercised, and the COP’s powers to authorise such restraint or DOL. It also considers the court’s jurisdiction in less urgent cases related to the welfare of the person who lacks capacity which may require some degree of restraint or freedom of movement.
The Deprivation of Liberty Safeguards part 4: challenging authorisation
- Authors:
- PEARCE Nasreen, JACKSON Sue
- Journal article citation:
- Family Law, 42, June 2012, pp.695-699.
- Publisher:
- Jordan
The framework introduced by amendments in 2009 to the Mental Capacity Act 2005 provides a regime whereby deprivation of liberty can be authorised by the state for people living in hospitals and care homes who lack capacity to consent to their living arrangements. This article, which is one of a series, describes and discusses the two routes for challenging the granting of authorisations. It looks first at review by the supervisory body, covering monitoring, review and procedure. It then looks at review by the Court of Protection, covering powers of the Court, procedure, the hearing, publicity, costs and funding, and case law (including a discussion of three case examples).
Mental Capacity Act 2005: not the Children Act for grown-ups
- Authors:
- PEARCE Nasreen, JACKSON Sue
- Journal article citation:
- Family Law, 41, July 2011, pp.697-702.
- Publisher:
- Jordan
In a number of recent Court of Protection cases, questions have arisen on the issue of whether the substantive principles and practice and procedure applied in cases under the Children Act 1989 are relevant to decisions made by the Court of Protection under the Mental Capacity Act 2005. The purpose of this 2 part article is to show that, while there may be some similarities, the principles that apply to decision making under the Mental Capacity Act are distinctly different to those which apply to cases under the Children Act. This article deals with the substantive law. Issues relating to practice, procedure and representation will be considered in the second part to be published in the August issue of Family Law. The article includes discussion on the issues of: parental responsibility v deputyship; protection v empowerment; and welfare v best interest. It demonstrates that the Mental Capacity Act 2005 creates a framework for the making of decisions on behalf of those who cannot do so for themselves, but does not create a passport for others to interfere in their lives.
Detention and the deprivation of liberty: the interface between the Mental Health Act 1983 and the Mental Capacity Act 2005: part 2
- Authors:
- PEARCE Nasreen, JACKSON Sue
- Journal article citation:
- Family Law, 42, November 2012, pp.1371-1376.
- Publisher:
- Jordan
Part 1 of this article (ipid, 42, 2012, pp.1262-1266) set out the relevant statutory provision which link the Mental Health Act 1983 (MHA 1983) and the Mental Capacity Act 2005 (MCA 2005). The statutory provisions seem at first sight to be clear but there are many instances when the interface between them has caused conflict and uncertainty and the question arises as to which of them has primacy in such a situation. This article analyses situations which have troubled the courts and how the courts have tackled the issues. It argues that the MCA 2005 deprivation of liberty safeguards, far from providing clarity, have complicated the avenues of protection available to those lacking capacity and who also may have poor mental health. This has resulting in uncertainty in the decision-making process, technical challenges to the decisions made, and ever increasing reference to the Court to adjudicate on these challenges and to give guidance and direction. There is thus an urgent need for clarity and consistency between the decisions made in the Court of Protection and the Upper Tribunal.
Detention and deprivation of liberty: the interface between the Mental Health Act 1983 and the Mental Capacity Act 2005: part 1
- Authors:
- PEARCE Nasreen, JACKSON Sue
- Journal article citation:
- Family Law, 42, October 2012, pp.1262-1266.
- Publisher:
- Jordan
The deprivation of liberty safeguards introduced under the Mental Capacity Act 2005 to protect those who lack capacity from treatment and care provided by public bodies, if this amounts to a deprivation of their liberty, were intended to provide equivalent protection for those who lack capacity as for those detained under the Mental Health Act 1983. This article explores how the two statutory provisions affect the decisions professionals make regarding the appropriate procedure which applies when considering provision of care and treatment which meets individuals' particular circumstances. It considers the purpose of having two separate statutory provisions and regimes. It also discusses, with examples, compulsory powers of admission, detention and treatment under the Mental Health Act 1983, informal admission and treatment, determining ineligibility, the meaning of 'within the scope of the Mental Health Act', and assessing objections.
The Deprivation of Liberty Safeguards Part 1: has the Mental Capacity Act 2005 bridged 'the Bournewood Gap'?
- Authors:
- PEARCE Nasreen, JACKSON Sue
- Journal article citation:
- Family Law, 42, March 2012, pp.319-322.
- Publisher:
- Jordan
The first of a series, this article discusses the Deprivation of Liberty Safeguards and the statutory authorisation procedure set out in the Mental Capacity Act 2005. It looks at the background, covering the history of the approach to informal admissions to care and development of the role of the Court of Protection, and the influence of the European Convention on Human Rights. It considers a leading case (R v Bournewood Community and Mental Health NHS Trust ex parte L) which highlighted the absence of any procedure in the mental health legislation to safeguard the rights of people lacking capacity who are detained or restrained to an extent that could be regarded as a deprivation of liberty. It reports that mental health legislation and Court of Protection changes began to address omissions in UK legislation highlighted in the Bournewood case, with developments including introduction of a restriction on deprivation of liberty and the Deprivation of Liberty Code of Practice. The authors note that the detail of the legislation and emerging case law will be discussed in further articles.
The Deprivation of Liberty Safeguards Part 2: the authorisation regime: statutory provisions of authorisations and Code of Practice
- Authors:
- PEARCE Nasreen, JACKSON Sue
- Journal article citation:
- Family Law, 42, April 2012, pp.432-437.
- Publisher:
- Jordan
The Deprivation of Liberty Safeguards (Schedule A1 procedures) deal with the legal framework and procedures for a managing authority of a hospital or care home to obtain authorisation to deprive a person who lacks capacity of their liberty for the purposes of providing care or treatment which is considered to be in their best interests. This article, one of a series of related articles, looks at the authorisation regime. It covers the procedures (when the process to obtain authorisation is begun, the application process for authorisation, and the qualifying requirements to be met to obtain authorisation), the role of the supervisory body, and urgent authorisation. The authors note that the process is complex and that further aspects of the authorisation process will be discussed future articles.