The government must ensure vulnerable people receive proper legal representation when authorities try to restrict their liberty, a judge has ruled.
In a brand new ruling at the Court of Protection, by Mr Justice Charles, singled out five ‘deprivation of liberty’ cases, in order to explore their legal ramifications. Each featured individuals who lacked ‘capacity’ – the ability to make their own decisions – due to dementia, disability or similar conditions. And in each case, authorities sought to restrict their freedom of movement in what was believed to the individual’s best interests. Normally such restrictions relate to a person’s accommodation or care. Under the Mental Capacity Act, such ‘deprivations of liberty’ must be authorised by the courts, and in each case, the person must have a representative in the court room. In most cases these are family members or friends.
But the five cases featured in this judgement all concerned individuals who lacked friends or family to represent them and protect their interests, although this situation later changed in one of the five cases.
In a ruling which has already been described as “unprecedented” by the Law Society, Mr Justice Charles declared that it was the government’s responsibility to ensure that, in such cases where a person without capacity is the subject of a deprivation hearing, they are adequately represented.
“‘Resources” to pay for suitable advocates must be made available, said the Judge, despite significant pressures on council funding.
“The provision of any such resources is highly likely if not inevitably to be at the cost of something else that can also be said to be important, and in the case of local authorities it is highly likely, if not inevitable, that it would be at the expense of the resources available to them to fund the placement and care of vulnerable people. This is an unhappy prospect but… it is one that has to be faced by central and local government.”
The government argued that responsibility lay with local councils but the Judge insisted that this was an abdication of responsibility which ignored the pressures which had been placed on council services.
“This has the hallmarks of an avoidant approach that prioritises budgetary considerations over responsibilities to vulnerable people …being deprived of their liberty.”
Law Society President Jonathan Smithers described the significance of the ruling.
“Today’s judgment makes the government responsible for making sure vulnerable people are properly represented when important decisions are made about their care. We look forward to working with the Ministry of Justice to find a solution that is in the best interests of vulnerable people who come to the Court of Protection.”
A spokesman for the government said they were “carefully considering” the judgment.