New: Case Law Summaries
Case Law Summaries are a new monthly resource providing an overview and analysis of selected cases, highlighting implications and recommendations for practice. We will also report on new legal guidance as it is published. The first edition of this new resource is open access.
Summaries this month focus on:
- Key Court of Protection cases (MCA/ DoLS).
- Key administrative law cases related to the Care Act 2014/judicial review and challenge.
- Key cases by the Office of Public Guardian, which occasionally bring situations concerning Lasting Power of Attorney or Deputyship that are relevant to social workers.
The first edition includes: analysis of two judgements relating to young women with capacity to make decisions, but who are at risk; three cases concerning British citizens or residents who have been taken abroad; three cases involving the management of money; as well as a case on the administration of covert medication, and others highlighting the complexities of best interests decisions.
We also summarise two new pieces of guidance, one relating to facilitating a person’s involvement in Court of Protection Proceedings, and another relating to the new Court of Protection COPDOL form 10.
Welcome to the first of our case law summaries, aimed at social workers in adult services.
In this edition, we look at a number of cases with similar themes:
- Two cases of young women with capacity to make decisions, but who are still at risk (Case 1 and Case 2)
- Three cases concerning British citizens or residents taken abroad (Case 2, Case 3 and Case 4)
- Three cases where a person is left very disabled following an accident or mis-managed birth: two of them have a large compensation package (Case 7 and Case 9, the other (Case 8) has none.
Adapted from guidance by 39 Essex Chambers
This refers to the new, more person-centred fact-finding form to be used for applications to the Court of Protection for
- authorisation to deprive people of their liberty,
- to give necessary care or treatment,
- in settings such as supported living,
- where DoLS cannot be used.
Facilitating participation of ‘P’ and vulnerable persons in Court of Protection proceedings Mr Justice Charles has released this practical guidance with helpful suggestions as to how practitioners might consider enhancing the participation of someone who might lack mental capacity, in proceedings in the Court of Protection. The introduction makes it clear this guidance is primarily directed towards health and welfare cases in the Court, and contains suggestions not rules: it is not a required checklist of all matters for consideration in all cases. Instead it is a list of suggestions for consideration by those representing the person (always in Court of Protection writings called ‘P’ for ‘person who may lack mental capacity’, changed here to ‘the person’ or ‘the individual’) and also other parties, including statutory agencies, as to how their participation in proceedings might be enhanced.
This case hinged both on assessments of decision and time specific capacity, and on what powers a Court has if someone ignores an order to stay away from a vulnerable person (clue: less than you’d think).
What makes a person vulnerable, and if they’re in another country, can – and should – a British court order their return to Britain?
This is yet another case dealing with a British citizen who is abroad, in this case currently probably Spain but likely to be taken to Thailand. The Court in this case follows Amina’s case in deciding that the British Courts do have a right to do all they can to protect a vulnerable person.
Another case concerning the practical power, or lack of it, of British courts to force someone to be brought back to Britain: this one will be visited again!
Case 5: Mrs. P (by her litigation friend, the Official Solicitor) v Rochdale BC (1) NHS North, Central and South Manchester CCG (2)  EWCOP B1
Best interests are deeply personal; and a Court-appointed deputy must consider them in that way, including the love of a pet (and also keep careful accounts of the person’s money).
Covert medication: what protections are there for the person receiving it?
This complicated case looked at the mental capacity, and then at the best interests of a man who had been awarded a large compensation package but who had probably not, as thought possible, regained the mental capacity to manage large sums of money.
If care is so expensive that the Local Authority cannot afford it, how can decisions about capacity and best interests be relevant?
Is it lawful to execute a statutory will without telling someone who could be entitled to a half share of the estate?
This case demonstrates the need to recognise when someone is not eligible for DoLS – in this case because she was detained under the Mental Health Act. It was pointed out that, in an out of hours application, there is limited support for the person’s rights since the Official Solicitor is not available. Staff should do their best to think ahead and apply in working hours where possible.
This case in the European Court of Human Rights is yet another one where a country thinks it’s not depriving someone of their liberty because the state has appointed a Legal Guardian and this person has consented to the highly restrictive personal care.