Court of Appeal delivers landmark ruling in ‘state detention’ inquest case – Local Government Lawyer

‘A woman with a learning disability who died whilst in the intensive care unit of a hospital was not in ‘state detention’, the Court of Appeal has ruled.’

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Local Government Lawyer, 27th January 2017

Source: www.localgovernmentlawyer.co.uk

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The Mental Capacity Act 2005: an opportune time to reflect – OUP Blog

‘More than a decade has passed since the Mental Capacity Act (‘MCA’) received royal assent. Described as a ‘visionary piece of legislation’, the MCA was a significant landmark on the legal landscape. It represented a triumph of autonomy by recognising that, as far as possible, people should play an active role in decisions about their welfare. At the core of the MCA is the fundamental principle that a person must be assumed to have decision making capacity unless it is established that he lacks it. The law therefore assumes that everyone has the ability to act and take decisions in accordance with their own interests, and affords primacy to individual priorities over paternalistic imperatives. Where a person lacks capacity – whether for reasons of learning disability, dementia, brain injury, or some other impairment of or disturbance in the functioning of the mind or brain – the MCA permits decision-makers to act on behalf of the person in accordance with his ‘best interests’. This means that, amongst other things, decision-makers must take into account the person’s past and present wishes and feelings, his beliefs and values, and any other factors that the person would be likely to consider, in order to act in a way which would likely give expression to the person’s autonomy. In this way, the MCA sought to empower people to make decisions for themselves, protect the vulnerable from the excesses of paternalism, and engineer a cultural shift in attitudes to mental impairment and incapacity.’

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OUP Blog, 17th January 2017

Source: www.blog.oup.com

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Deprivation of liberty under scrutiny at Court of Appeal – Law Society’s Gazette

‘Two years after a Supreme Court landmark ruling led to a surge in applications by local authorities for deprivations of liberty under the Mental Capacity Act, the Court of Appeal is to rule on whether a patient in intensive care can be considered to be in state detention.’

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Law Society’s Gazette, 14th December 2016

Source: www.lawgazette.co.uk

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Holocaust survivor: care home feels like being back in concentration camp – Daily Telegraph

Posted December 2nd, 2016 in care homes, deprivation of liberty safeguards, elderly, news, restraint by sally

‘Holocaust survivor who said living in a care home reminded her of being back in a Nazi concentration camp has been given special permission by a court to return home despite her frail condition.’

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Daily Telegraph, 1st December 2016

Source: www.telegraph.co.uk

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Care home residents deprived of liberty in record numbers – The Guardian

‘Record numbers of care home residents are being deprived of their liberty by being put in straps, locked in or given behaviour-controlling drugs, fuelling fears that some are being mistreated.’

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The Guardian, 28th September 2016

Source: www.guardian.co.uk

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Court of Protection judge criticises firm for ‘brutal and insensitive’ comments – Law Society’s Gazette

‘A north-west firm is considering appealing a Court of Protection ruling in which it was removed as a financial deputy in a case concerning deprivation of liberty and care arrangements.’

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Law Society’s Gazette, 19th August 2016

Source: www.lawgazette.co.uk

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Staffordshire County Council v K and others – WLR Daily

Staffordshire County Council v K and others [2016] EWCOP 27

‘An incapacitated adult (“K”), who had been severely injured in a road traffic accident, was awarded substantial damages in court proceedings which were used by his property and affairs deputy, a private trust corporation, to provide a specially adapted residence and to fund the regime of care and support provided by private sector providers. The local authority, having been informed of the arrangements for K’s care and the arrangements having been registered with the Care Quality Commission, applied to the Court of Protection for a welfare order under section 16 of the Mental Capacity Act 2005. The parties accepted that the arrangements constituted a deprivation of liberty satisfying two of three components of a deprivation of liberty within article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, but the Secretary of State contended that the third component, namely the attribution of responsibility to the state, did not apply to the privately funded and arranged care regime (and to others in an equivalent position), so that the care regime could lawfully be put in place without a welfare order being made under the Act.’

WLR Daily, 25th May 2016

Source: www.iclr.co.uk

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Judge challenges government over legal representation for vulnerable people – The Guardian

‘A senior judge has challenged the government to provide legal representation for vulnerable people as a backlog of safeguarding cases that cannot be tried builds up in the court of protection.’

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The Guardian, 10th March 2016

Source: www.guardian.co.uk

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Mental Capacity Law Newsletter – 39 Essex Chambers

Mental Capacity Law Newsletter (PDF)

39 Essex Chambers, November 2015

Source: www.39essex.com

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Inquests & Deprivation of Liberty – No. 5 Chambers

Posted September 4th, 2015 in care homes, deprivation of liberty safeguards, detention, hospitals, inquests, news by sally

‘In December 2014, the Chief Coroner issued guidance as the approach to be taken when someone dies at a time when they are deprived of their liberty under the Mental Capacity Act 2005 (MCA 2005). Its effect is yet to be seen.’

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No. 5 Chambers, 2nd September 2015

Source: www.no5.com

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Court of Appeal comments on deprivation of liberty and being party to proceedings – Local Government Lawyer

‘The Court of Appeal has held that it did not have jurisdiction to determine appeals against the President of the Court of Protection’s Re X rulings in which he sought to streamline procedures for dealing with certain types of deprivation of liberty cases.’

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Local Government Lawyer, 16th June 2015

Source: www.localgovernmentlawyer.co.uk

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Relatives of dementia sufferers who die in care homes having to wait months to bury loved ones thanks to new Government rules – The Independent

‘Relatives of dementia sufferers who pass away in care homes are being forced to wait months to bury loved ones because of new rules.’

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The Independent, 28th May 2015

Source: www.independent.co.uk

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Mental Capacity Law Newsletter – 39 Essex Chambers

Posted April 29th, 2015 in deprivation of liberty safeguards, mental health, news, Scotland by sally

Mental Capacity Law Newsletter (PDF)

39 Essex Chambers, April 2015

Source: www.39essex.com

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Deprivation of liberty guidance clarifies rules – Law Society’s Gazette

‘The Law Society has today issued new guidance on deprivation of liberty safeguards (DOLS) to help lawyers meet an expected 10-fold surge in the number of legal challenges to DOLS over the coming year.’

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Law Society’s Gazette, 9th April 2015

Source: www.lawgazette.co.uk

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Mental Capacity Law Newsletter – 39 Essex Chambers

Posted April 2nd, 2015 in deprivation of liberty safeguards, mental health, news, Scotland by sally

Mental Capacity Law Newsletter (PDF)

39 Essex Chambers, March 2015

Source: www.39essex.com

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Judge hits out at Court of Appeal over consent order in deprivation of liberty case – Local Government Lawyer

‘A High Court judge has accused the Court of Appeal of apparently taking a “procedurally impermissible route” and making a consent order that was ultra vires, in legal proceedings over whether a woman looked after at home had been deprived of her liberty.’

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Local Government Lawyer, 18th March 2015

Source: www.localgovernmentlawyer.co.uk

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In re AJ (Deprivation Of Liberty: Safeguards) – WLR Daily

In re AJ (Deprivation Of Liberty: Safeguards) [2015] EWCOP 5 ; [2015] WLR (D) 64

‘In situations involving a deprivation of liberty local authorities and professionals needed to be alert to cases where vulnerable people were admitted to residential care, ostensibly for respite care, when the underlying plan was for a permanent placement without proper consideration of their rights under article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.’

WLR Daily, 10th February 2015

Source: www.iclr.co.uk

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Elderly man ‘held prisoner’ in care home – Daily Telegraph

‘An elderly man suffering from dementia was treated like a “prisoner” after social workers dispatched him to a nursing home against his and his family’s wishes without going through proper legal processes, a formal investigation has found.’

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Daily Telegraph, 28th January 2015

Source: www.telegraph.co.uk

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Nonagenarian unlawfully detained in care home for nearly two years – UK Human Rights Blog

‘The Court of Protection has castigated the actions of a County Council in depriving an old person of his liberty and dignity in their overreaction to reports that he might be subjected to financial exploitation. This, said the judge, amounted to punishing the victim for the acts of the perpetrators.’

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UK Human Rights Blog, 22nd January 2015

Source: www.ukhumanrightsblog.com

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Have we lost sight of J.S. Mill’s concept of the right to liberty? Article 5 in the Court of Protection – UK Human Rights Blog

‘Mostyn J has pulled no punches in rejecting an application for a declaration that an incapacitated person, being looked after in her own home, has been deprived of her liberty contrary to Article 5. There is a very full account of the judgment on the Mental Capacity Law and Policy blog so I will keep this summary short.’

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UK Human Rights Blog, 21st November 2014

Source: www.ukhumanrightsblog.com

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