People unable to make decisions for themselves must always have access to expert independent representation in court hearings about their welfare, the Law Society said today as it launched a new mental capacity accreditation for legal representatives serving the Court of Protection.
The Law Society is working with the Court of Protection and The City Law School to provide training and accreditation to ensure expert legal representation is available for all mental capacity cases in which welfare matters are at stake.
"The Court of Protection makes decisions about enforced medical treatment, care, deprivation of liberty or limits on people’s movements, where they live or who they see," said Law Society president Robert Bourns.
"We are working with the court to ensure accredited legal representatives are available to assert and defend the rights of vulnerable people when important decisions are made about their lives.
"Anyone living with dementia, a learning disability or brain injury - for instance - must have their best interests protected, whether they are in a hospital, care or family home. To ensure this is done, they should have the value and reassurance of expert legal representation to protect their rights, as well as their health and general welfare."
In an unprecedented judgment in March 2016, Mr Justice Charles, vice president of the Court of Protection, highlighted the lack of appropriate representatives available to vulnerable people coming to the court. Large numbers of such cases, concerning what are often crucial health and welfare decisions, are still pending indefinitely.
Robert Bourns added: "The Law Society mental capacity accreditation will ensure that vulnerable people coming to the Court of Protection are represented by experts with a depth of understanding of the complexities involved in representing clients who lack mental capacity.
"As our population ages and the number of people who need long-term care grows, it's essential that measures to protect people who lack mental capacity are fit for purpose."
Notes to editors
See more information on the Law Society's mental capacity (welfare) accreditation and training.
The development of the accreditation scheme follows the landmark Supreme Court case of P v Cheshire West & Chester Council; P & Q v Surrey County Council in 2014, which lowered the threshold for cases to go to the Court of Protection. This has increased the number of vulnerable people whose restrictions require authorisation by the Court of Protection.
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 mental 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. The Law Commission has recently reported to the government with a draft bill that would provide new streamlined Liberty Protection Safeguards to replace DoLS. It is yet to be known whether the government will accept their recommendations and/or the draft bill.
About the Law Society
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