The state must protect vulnerable people from being deprived of their liberty without proper legal safeguards, the Law Society of England and Wales said following a stinging ruling in the Court of Protection.
“The judgment shines a light on a largely hidden area of our justice system where people suffering from dementia, Alzheimer's or a learning disability wait indefinitely for their cases to be heard because of a lack of funding for representation,” Law Society vice president Christina Blacklaws said.
“People can be deprived of their liberty, their movements closely supervised and restricted and they may be given medication and other treatments to control their behavior.
“These restrictive arrangements may be in the individual’s best interests, but authorisation from the Court of Protection is needed to ensure the vulnerable person’s rights are adequately protected.”
Many people will understand the challenges of making decisions for a relative who is unable to give their consent.
“We are very grateful to Mr Justice Charles for his continued determination to highlight the human cost of cuts to local authority and rationed Ministry of Justice funding – and to find a solution,” Christina Blacklaws added.
“The 330 stayed cases at the Court of Protection represent a fraction of the thousands of people around the country who we believe are being deprived of their liberty without proper judicial oversight, in contravention of their rights under the Human Rights Act.
“The Law Society Mental Capacity Accreditation scheme, which trains and vets solicitors so that they have the skills and knowledge to represent the interests of people who lack capacity, is only part of the solution.
“As Mr Justice Charles makes clear, the State can no longer abdicate responsibility for providing funding – either to local authorities or to the Ministry of Justice – to protect some of the most vulnerable people in our society.”
Notes to editors
In an unprecedented judgment in March 2016, Mr Justice Charles, vice president of the Court of Protection, placed responsibility on the government to ensure that each vulnerable individual whose liberty is considered in the Court of Protection has appropriate representation when their case is considered.
The most recent ruling (15 January 2018) concerns four test cases (JM & others) where no appropriate representative could be found for reasons including resource constraints.
In 2016 Mr Justice Charles ruled that all future similar cases would be adjourned until a workable solution is found. This means that growing numbers of such cases, concerning what are often crucial health and welfare decisions, are pending indefinitely.
The Law Society of England and Wales intervened in the case of JM & others to help the Court of Protection in its efforts to find a solution to the lack of appropriate representatives available for vulnerable people in cases where decisions are made about their freedom.
The Court of Protection
The Court of Protection was established under the Mental Capacity Act 2005 and decides on issues relating to mental capacity. It has jurisdiction over questions relating to both health and welfare and financial affairs and is regularly called upon to decide upon applications for authorisations under the Deprivation of Liberty Safeguards regime.
The Mental Capacity Act 2005
The Act imposes Deprivation of Liberty Safeguards (DoLS) which aim to ensure that persons lacking capacity and residing in care homes, hospitals and supported living environments are not subjected to unnecessary or overly restrictive measures in their day to day care. DoLS require assessment and authorisation of restrictive measures on a person's liberty, and in some circumstances court authorisation. Liberty-restricting measures, such as regular and/or prolonged restraint, should be considered only as a last resort and when it is in the best interests of the individual and other less restrictive options have been exhausted.
About the Law Society
The Law Society is the independent professional body that works globally to support and represent solicitors, promoting the highest professional standards, the public interest and the rule of law.
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