Mental Capacity Guidance Note: Deprivation of Liberty in the Hospital Setting – 39 Essex Chambers

‘The law governing the deprivation of a person’s liberty in a hospital can be complex. In every case it involves (or should involve) consideration of the question of what amounts to a deprivation of liberty for the purposes of domestic legislation and Article 5 of the European Convention of Human Rights (‘ECHR’). In very many cases, it involves the interface of two statutory regimes (the Mental Health Act 1983 (‘MHA 1983’) and the Mental Capacity Act 2005 (‘MCA 2005’)).’

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39 Essex Chambers, 11th November 2019

Source: www.39essex.com

‘Best Interests’- how to decide? – Family Law

Posted November 8th, 2019 in children, Court of Protection, elderly, mental health, news, official solicitor by tracey

‘I act as a Deputy for many clients, young and old, with different needs, requests and expectations. I manage their money and need to make best interest decisions daily. When a client lacks capacity to make a particular decision then it’s my job to help support them in making that decision. If they can’t make a particular financial decision then I become the “decision maker”.’

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Family Law, 8th November 2019

Source: www.familylaw.co.uk

Judge criticises council for breaching duty of disclosure when making streamlined application for authorisation of deprivation of liberty – Local Government Lawyer

‘A council has been criticised by a Court of Protection judge for breaching the duty of full and frank disclosure when it made an application under the streamlined procedure for authorisation of a deprivation of liberty.’

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Local Government Lawyer, 30th October 2019

Source: www.localgovernmentlawyer.co.uk

Applications to the Court of Protection: The Notification Process – Family Law

Posted October 11th, 2019 in Court of Protection, news, notification, time limits by tracey

‘The Court of Protection is unable to make a Deputyship order unless the appropriate notification process has been followed by the applicant.’

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Family Law, 10th October 2019

Source: www.familylaw.co.uk

Social services should not help man meet sex workers, judge rules – The Guardian

‘A judge has ruled that social services should not facilitate access to prostitutes for a man with learning disabilities who has a “high sex drive”.’

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The Guardian, 7th October 2019

Source: www.theguardian.com

Can parents agree to a 16 year old being detained? – Transparency Project

‘As a result of a new Supreme Court judgment, local authorities will no longer be able to offer residential care, with parents’ agreement, to 16 and 17 year olds where they are supervised and not free to leave – unless there is a court order. This decision potentially affects many thousands of teenagers who are in supportive placements.’

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Transparency Project, 28th September 2019

Source: www.transparencyproject.org.uk

Giving birth and the Court of Protection – Transparency Project

Posted September 3rd, 2019 in birth, consent, Court of Protection, health, learning difficulties, news, pregnancy by sally

‘Every year, there are a handful of applications to the Court of Protection to authorise delivery a baby by caesarean section against the wishes of the mother, or where the mother is unable to express a preference due to significant mental impairment. Since the case of FG in 2014 (NHS Trust & Ors v FG [2014] EWCOP 30), the guidance given to medical practitioners has been that a court application is required where a c-section is proposed but the merits are finely balanced or will involve more than transient forcible restraint; where there is a serious dispute about the patient’s best interests; or where there is a real risk that the proposed treatment constitutes a deprivation of the patient’s liberty.’

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Transparency Project, 2nd September 2019

Source: www.transparencyproject.org.uk

Capacity and sexual relations – trying to make it personal – Local Government Lawyer

Posted July 25th, 2019 in consent, Court of Protection, married persons, news by tracey

‘Alex Ruck Keene analyses the latest Court of Protection ruling on capacity and sexual relations.’

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Local Government Lawyer, 19th July 2019

Source: www.localgovernmentlawyer.co.uk

Capacity to consent to sexual relations: obscurity illuminated? – Transparency Project

‘The intimate life of a woman, who is known to the public only by the initials NB, is the subject of a case in the Court of Protection which attracted headlines earlier this year. A further judgment has recently been published, following an interim judgment published in May.’

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Transparency Project, 23rd July 2019

Source: www.transparencyproject.org.uk

Woman must have chemotherapy despite wanting to die, judge rules – The Independent

Posted July 18th, 2019 in cancer, consent, Court of Protection, medical treatment, news by tracey

‘A woman with a brain tumour should have chemotherapy despite “wanting to die”, a judge has decided.’

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The Independent, 17th July 2019

Source: www.independent.co.uk

Re AB: Termination of pregnancy – Law & Religion UK

Posted July 15th, 2019 in abortion, consent, Court of Protection, learning difficulties, news by tracey

‘Re AB [2019] EWCOP 26, [2019] EWCA Civ 1215[1]. The recent case of Re AB has been widely reported. In it, Lieven J held in the Court of Protection that an NHS Trust was permitted to perform an abortion on a 24-year-old woman. The Court of Appeal overturned that decision. The case created headlines around the world, shining a spotlight on the work of the Court of Protection and the difficult decisions that it has to make on a daily basis.’

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Law & Religion UK, 15th July 2019

Source: www.lawandreligionuk.com

Court of Protection issues ruling in test case on appointment of personal welfare deputies – Local Government Lawyer

‘A Court of Protection judge has clarified the circumstances in which family members may become personal welfare deputies for people aged over 18, calling for the Code of Practice under the Mental Capacity Act 2005 to be redrafted.’

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Local Government Lawyer, 2nd July 2019

Source: www.localgovernmentlawyer.co.uk

Blood products and Jehovah’s Witnesses: DE – Law and Religion UK

‘In Manchester University NHS Foundation Trust v DE [2019] EWCOP 19, DE was a 49-year-old woman who suffered from autism and mild learning difficulties: she and her mother were Jehovah’s Witnesses [3]. In April 2019, DE broke her leg, and the medical evidence was that she needed surgery and that there was a risk that she would require blood transfusion or blood products during the operation [4]. If she did not have the operation, her mobility would be impaired [5] and the need for an operation was urgent.’

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Law and Religion UK, 29th May 2019

Source: www.lawandreligionuk.com

Withdrawal of life support: minimally conscious patients – UK Human Rights Blog

Posted May 31st, 2019 in consent, Court of Protection, medical treatment, news by tracey

‘A Clinical Commissioning Group v P (by her litigation friend the Official Solicitor) and TD [2019] EWCOP 18. The lesson to be learned from this case is to be careful of the hands into which you may fall, should you become incapacitated and end up in a vegetative or minimally conscious state.’

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UK Human Rights Blog, 30th May 2019

Source: ukhumanrightsblog.com

NB on Re NB – Transparency Project

‘At the beginning of April 2019, a Press Association report of an interim hearing at the Court of Protection provoked a number of newspaper headlines and outraged reactions, because it quoted a High Court judge, Mr Justice Hayden, as having spoken of a “fundamental human right” of a man to have sex with his wife. This was in the course of a preliminary hearing in the Court of Protection, a court which makes decisions about and on behalf of adults who lack mental capacity to make decisions themselves. The Court of Protection can decide whether or not an adult lacks mental capacity to make decisions about sexual relations, and if he or she does not, make orders which protect the adult as far as possible from having sexual relations, by imposing restrictions on their freedom of contact with other people. The Court cannot make a decision about whether or not to have sexual relations on behalf of an incapacitated adult, as that is an intimate personal decision which no-one can take on behalf of anyone else. The law’s approach to capacity to marry is exactly the same.’

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Transparency Project, 20th May 2019

Source: www.transparencyproject.org.uk

Judge hits out at “irresponsible” media reporting of case on capacity to consent to sex – Local Government Lawyer

Posted May 16th, 2019 in consent, Court of Protection, judges, local government, media, news by sally

‘A Court of Protection judge has strongly criticised media reporting of a case involving whether a woman had the capacity to consent to sex with her husband.’

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Local Government Lawyer, 16th May 2019

Source: www.localgovernmentlawyer.co.uk

Judge allows doctors to perform hysterectomy on mentally ill woman – BBC News

‘A judge has granted permission for doctors to perform a hysterectomy on a mentally ill woman.’

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BBC News, 10th May 2019

Source: www.bbc.co.uk

Barristers can act as deputies, Court of Protection rules – Legal Futures

‘Barristers can act as professional property and affairs deputies for people who lack mental capacity, although it is not seen as a legal service, the Court of Protection has ruled.’

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Legal Futures, 26th April 2019

Source: www.legalfutures.co.uk

English judge says man having sex with wife is ‘fundamental human right’ – The Guardian

‘A row has erupted after a judge spoke in court about the “fundamental human right” of a man to have sex with his wife.’

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The Guardian, 3rd April 2019

Source: www.theguardian.com

Judge to rule whether man’s wife has mental capacity to consent to sex – Daily Telegraph

‘A judge is set to rule whether a man can continue to sleep with his wife of more than 20 years amid concerns over her mental capacity.’

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Daily Telegraph, 1st April 2019

Source: www.telegraph.co.uk