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Legal consultation on mental capacity launched

The Law Commission has launched a review of current laws surrounding mental capacity and deprivation of liberty.

Mental capacity is the ability to make decisions regarding one’s own welfare and best interests. If this is compromised due to illness or disability, doctors and carers may sometimes wish to restrict the person’s ‘liberty’ in their own best interests, for example by limiting their freedom of movement or by imposing medical procedures which they cannot consent to. Such decisions could in theory infringe the person’ right to “liberty and security of person” under Article 5 of the European Convention on Human Rights. To address this issue, a range of ‘deprivation of liberty’ safeguards were added to Mental Capacity Act 2005 and these include a requirement that the restrictions themselves are authorised by the Court of Protection.

The Safeguards have been criticised as complex and bureaucratic, and in a newly published consultation paper, the Law Commission continues this theme, describing the current system as “deeply flawed”. The paper proposes an alternative ‘protective care’ system, centred around the individual needs of people living in care and residential homes. Restrictive forms of care and treatment would be authorised – or not – as required, by an independent ‘Approved Mental Capacity Professional’.

People subject to the Protective Care system would have an advocate appointed to represent their interests. Challenges would take place before a specially appointed tribunal and not in court as at present.

Running alongside this system, the Commission proposes a second set of safeguards tailored to people in hospital or other temporary accommodation such as a palliative care wards.

The consultation will run until 2 November, with a final report and recommendations due next year.

The Law Commission is a statutory body charged with reviewing current legislation and recommending reform where necessary.

Read the consultation paper 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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