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People without capacity must be involved in court

People who lack capacity must be involved in or represented at any court cases which might affect their liberty, the Court of Appeal has declared.

People who are unable to make decisions about their own welfare due to illnesses such as Alzheimer’s or disabilities such as autism are referred to in law to as lacking ‘capacity’. Sometimes professionals treating such people decide that their freedom of movement or choice must be restricted in their own best interests. Such situations can include restraint or the forced application of medical treatment.

In such cases, doctors and similar professionals must apply for authorisation by the courts under the so-called deprivation of liberty safeguards which were included in the Mental Capacity Act 2005.

A Supreme Court judgement in May last year overturned an earlier deprivation of liberty authorisation by the President of the Family Division, thereby lowering the criteria required for a deprivation of liberty authorisation by the Court of Protection. Subsequently Sir James issued new guidance, streamlining and simplifying the process for such authorisations in anticipation of a surge in applications.

The President later made two further rulings concerning the newly streamlined process and the Law Society subsequently appealed these, arguing that a person who faces a restriction on their liberty should always be a party to the legal proceedings.

In a judgment described by the Law Society as “unusual”, Court of Appeal Judge Lady Justice Black has now concluded that the court lacks jurisdiction in the matter. But she went on to state that, if it had held jurisdiction, she and her fellow Appeal Judges would have ruled in favour of the Law Society’s position.

Law Society President Andrew Caplan said:

“We recognise the resourcing pressures on the Court of Protection, but anyone facing court proceedings which concern their liberty must be able to participate effectively in or be legally represented at those proceedings. We hope to work closely with the Court of Protection to resolve the issues brought to light by the judgment.”

The judgement is available to read here.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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