Rise in care children being ‘deprived of liberty’ – BBC News

‘The number of children in care in England and Wales who have restrictions placed on their freedom has tripled in the last two years, BBC News has found.’

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BBC News, 6th August 2020

Source: www.bbc.co.uk

Judicial Authorisation of Deprivation of Liberty – 39 Essex Chambers

‘With the delay to the introduction of the Liberty Protection Safeguards until April 2022, and unless the Mental Health Act 1983 is applicable, there is no administrative mechanism available to authorise the deprivation of liberty for a person with impaired decision-making capacity who is either (1) outside a hospital or care home; or (2) is in a hospital or care home or is aged 16 or 17. This means that, unless a court authorises the position, those people caring for the person have no legal “cover” for their actions, and (where relevant) the public body commissioning care or aware of the person’s circumstances will also be acting unlawfully.’

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39 Essex Chambers, July 2020

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Safeguards over deprivations of liberty are “indispensable” to frail and vulnerable, says senior judge, amid “striking and troubling” drop in number of s.21A applications – Local Government Lawyer

‘The view that careful adherence to proper legal process and appropriate authorisation of deprivations of liberty may now, at times, be required to give way to other pressing welfare priorities is “entirely misconceived”, the Vice President of the Court of Protection has warned.’

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Local Government Lawyer, 15th May 2020

Source: www.localgovernmentlawyer.co.uk

Family Team Under 10’s Newsletter – Winter 2020 Edition – Parklane Plowden

‘In the Winter edition of our Family Under 10’s Newsletter, Simon Wilkinson provides a case update with regards to the Matter of D, Giorgia Sessi studies the guidance published by the Courts and Tribunals Judiciary, whilst Charlotte Wilce lays out a case study regarding the role of CAFCASS in relation to non-subject children.’

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Parklane Plowden, 7th January 2020

Source: www.parklaneplowden.co.uk

Court of Appeal gives guidance on Secure Accommodation Orders – Transparency Project

‘The local authority was applying for a secure accommodation order in respect of B (aged 15). B and her parents opposed this, mainly because the proposed placement was some distance away.’

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Transparency Project, 29th November 2019

Source: www.transparencyproject.org.uk

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

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

Public law children cases: improving parental situations, robust case management and judicial pressure – Local Government Lawyer

‘Georgina Dalton rounds up the latest children law cases, including rulings on improvements to parents’ situations, unfair judicial pressure, and deprivations of liberty of 16-17 year olds.’

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Local Government Lawyer, 18th October 2019

Source: www.localgovernmentlawyer.co.uk

The Supreme Court’s Judgment on the Limits of the Exercise of Parental Responsibility – Family Law

‘The focus of this case is whether the confinement of a young person aged 16-17 years-old, found not to be Gillick (Gillick v West Norfolk and Wisbech AHA House of Lords [1986]) competent, amounted to a deprivation of his liberty where his parents had consented to such confinement.’

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Family Law, 20th October 2019

Source: www.familylaw.co.uk

Supreme Court considers parental responsibility and deprivation of liberty – Family Law Week

‘The Supreme Court, by a majority of three to two, has held, in D (A Child) [2019] UKSC 42, a case concerning a young person lacking mental capacity, that there is no scope for the operation of parental responsibility to authorise what would otherwise be a violation of a fundamental human right of a child, that is his liberty.’

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Family Law Week, 26th September 2019

Source: www.familylawweek.co.uk

Council broke law over deprivation of liberty, ombudsman rules – The Guardian

‘A council deliberately broke the law by failing to properly assess whether thousands of vulnerable people were illegitimately kept under continuous and restrictive supervision by care home staff, the local government and social care ombudsman has ruled.’

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The Guardian, 1st April 2019

Source: www.theguardian.com

Care homes applying for hundreds more court orders to prevent elderly from going outside, figures reveal – Daily Telegraph

‘Care homes and hospitals are applying for hundreds more elderly people to be locked inside, new data shows.’

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Daily Telegraph, 29th March 2019

Source: www.telegraph.co.uk

Capacity to tweet? – Doughty Street Chambers

‘In two judgments (Re A and Re B) Cobb J has confirmed that capacity to make decisions about internet and social media use do not form a “subset” of of a person’s ability to make decisions about care or contact. Capacity to use the internet and social media are “inextricably linked; the internet is the communication platform on which social media operates. For present purposes, it does not make sense in my judgment to treat them as different things. It would, in my judgment, be impractical and unnecessary to assess capacity separately in relation to using the internet for social communications as to using it for entertainment, education, relaxation, and/or for gathering information.”‘

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Doughty Street Chambers, 26th February 2019

Source: insights.doughtystreet.co.uk

Court of Protection should not summarily dismiss cases where liberty is at stake, says senior judge – Local Government Lawyer

‘Court of Protection judges should not summarily dismiss cases where someone’s liberty is at stake, Mr Justice Hayden, Vice President of the court, has said.’

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Local Government Lawyer, 14th March 2019

Source: www.localgovernmentlawyer.co.uk

What price freedom? Counting the cost when DoLS goes wrong – UK Human Rights Blog

‘Twenty years on from Bournewood, the case that prompted the introduction of DoLS, and as the Mental Capacity Amendment Bill tolls the death knell for DoLS and introduces as their replacement Liberty Protection Safeguards, the High Court (HHJ Coe sitting as a Deputy High Court Judge) has given a sharp reminder of the human and financial cost of what happens when a hospital fails properly to discharge its obligations under the Mental Capacity Act and as a result, falsely imprisons (in a hospital) a patient.’

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UK Human Rights Blog, 5th February 2019

Source: ukhumanrightsblog.com

New Judgment: Welsh Ministers v PJ [2018] UKSC 66 – UKSC Blog

‘This appeal considered whether a statutory power to impose conditions amounting to a deprivation of liberty can ever lawfully be ‘implied’ and whether the framework for Community Treatment Orders provides practical and effective protection for patients’ rights under the ECHR rights. It also considered what the scope is of a tribunal’s power to take into account ECHR rights.’

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UKSC Blog, 17th December 2018

Source: ukscblog.com

Supreme Court rules on CTOs, conditions and deprivations of liberty – Local Government Lawyer

‘There is no power for a responsible clinician to impose conditions in a community treatment order (CTO) which have the effect of depriving a patient of his liberty, the Supreme Court has ruled.’

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Local Government Lawyer, 17th December 2018

Source: www.localgovernmentlawyer.co.uk

Deprivation of Liberty and Consent- the Supreme Court decides – Doughty Street Chambers

Posted December 12th, 2018 in consent, deprivation of liberty safeguards, detention, mental health, news by sally

‘The Supreme Court has handed down judgment in the case of MM. This was an appeal against the Court of Appeal’s decision in the Secretary of State for Justice v MM [2017] EWCA Civ 194 (29 March 2017).Both PJ and MM appealed to the Supreme Court but for administrative reasons MM’s appeal was heard first. MM’s appeal has been dismissed.MM was detained under sections 37/41 Mental Health Act (“MHA”) and sought a conditional discharge from hospital to conditions which would objectively give rise to a deprivation of his liberty, to which he had capacity to consent. Although no placement had been identified the First Tier Tribunal (Mental Health) (“the FtT”) was asked whether as a matter of principle it would be lawful to discharge him conditionally on such conditions. The FtT ruled that it could not. At the Upper Tribunal Charles J held that he could give a valid consent to this and as such Article 5 would not be engaged. (A similar issue was in play in Secretary of State v KC [2015] UKUT 0376 (AAC, where Charles J held that the FtT could impose conditions on a discharge that objectively deprived a patient of his or her liberty and that the Court of Protection and/or a decision maker could consent to).’

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Doughty Street Chambers, 28th November 2018

Source: insights.doughtystreet.co.uk

MPs and peers demand changes to Mental Capacity (Amendment) Bill – Local Government Lawyer

‘The Mental Capacity (Amendment) Bill requires further changes to protect the human rights of vulnerable people, MPs and peers have warned.’

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Local Government Lawyer, 31st October 2018

Source: www.localgovernmentlawyer.co.uk

Liberty protection safeguards to protect vulnerable people in care – Family Law

Posted August 10th, 2018 in deprivation of liberty safeguards, mental health, news by sally

‘Amendments to mental health legislation aim to correct some of the current system’s obvious failings. Ben Troke, solicitor at Browne Jacobson LLP, discusses the Mental Capacity (Amendment) Bill, which introduces new law to protect the rights of people who do not have the mental capacity to make decisions about their care, and replaces the much-criticised deprivation of liberty safeguards (DoLS).’

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Family Law, 9th August 2018

Source: www.familylaw.co.uk