Judge orders end of detention for retired lawyer

Family Law|August 13th 2014

A judge in the Court of Protection has ordered the end of a “compulsory detention” for a retired lawyer with an alcohol-related mental illness.

In X v A Local Authority, the man was thought to suffer from Korsakoff’s Syndrome. The symptoms of this illness include severe memory loss, apathy and blackouts. It can be caused by the over-consumption of alcohol.

The former lawyer admitted to heavy drinking following the breakdown of his marriage, but records indicated that his excessive consumption began “well before that date”.

The man, identified as ‘X’ in the judgment, had been detained in a hospital under the Mental Health Act 1983. Section 3 of the Act allows for someone to be legally detained in order to be treated for a mental disorder.

After his stay in hospital, X was detained in a care home under a ‘deprivation of liberty safeguard’, so he applied to the Court of Protection to have the detention ended.

Sitting at the Birmingham Civil Justice Centre, His Honour Judge Cardinal first assessed X’s ability to make decisions regarding his residence and welfare. The court is empowered to make these decisions based on Section 15 of the Mental Capacity Act 2005.

The judge described X as “a very intelligent man” who was “familiar with civil cases in the courts”, but added that “intelligence and education do not necessarily equate to capacity”. He said that, in this case, the issue was not of a learning disability but whether mental illness prevented X from making an informed decision.

Citing the 2005 Act, the judge said the burden of proof for X lacking the ability to make decisions for himself falls upon the local authority, as Section 2 states that someone “must be assumed to have capacity unless it is established” otherwise.

A report from a social worker said that “it would be difficult to conclude that he lacks capacity from the information he gave and understanding that he displayed” during an interview X had with her and a consulting doctor.

Judge Cardinal said that he had “no doubt that X suffers from mental impairment as a result of his alcohol related mental illness”. Despite that, X had improved to the point where he was able to make decisions about his medical treatment and where he should live.

The judge added that his conclusion did not mean X would not relapse. He said that even if X was “foolish enough” to resume drinking, it would not necessarily show he was incapable of making decisions.

Therefore, the judge ordered that X’s detention be brought to an end.

To read the full judgment, click here.

Author: Stowe Family Law

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