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Case Law and Legal Summaries

Case Law summaries

Case Law and Legal Summaries: monthly overview and analysis of selected cases, highlighting implications and recommendations for practice.

 

Case Law and Legal Summaries July 2017

This issue is themed on coercion and explores the roles both of the Court of Protection and of the inherent jurisdiction of the High Court. It addresses the following issues:

  • Case 1 discusses a young woman whose capacity is disputed; she and her mother are refusing any assessment. 
  • In Case 2 an elderly woman is bullied by her paid carers who make her frightened to trust professionals. 
  • Case 3 asks the question, can a person with capacity to marry, be found to lack capacity to live with her husband? 
  • If a person might have capacity, can a local authority ask for powers to control their residence, education, money and welfare? (Case 4
  • Where people have capacity to decide how to live, but are being bullied and abused, what legal powers are available to protect them? (Case 5)

 

Case Law and Legal Summaries June 2017

This issue considers matters including:

  • A decision on the legality of national funding provision for Deprivation of Liberty Safeguards processes (Case 1).
  • A judgment clarifying that it is the responsibility of local authorities, as the supervisory bodies, to monitor compliance with DoLS conditions (Case 2).
  • How to ensure that fact and opinion are separated in family disputes (Case 3).
  • A good example of using a balance sheet approach in coming to a best interests decision, here about life-sustaining treatment (Case 4).
  • A judgment on how far a person’s cultural and religious background dictates their best interests (Case 5).
  • News of the Supreme Court’s refusal to consider an appeal about whether people receiving ‘life saving’ treatment can be subject to DoLS.

 

Case Law and Legal Summaries May 2017

This issue concentrates on the messages for practice about supporting relationships that have emerged from court cases, mainly within the Court of Protection. This is not a complete review of relevant cases, but focuses on those that have led to clear and helpful guidance, including some that featured in previous editions of this resource. Issues covered include:

  • Capacity to consent to sexual relations and to marriage, also considering cultural factors (Case 1).
  • When should adults lacking capacity be removed from their families and to the care of a local authority (Case 2)?
  • Safeguarding, and the duty to avoid unlawful breaches of Article 8 rights (Case 3 and Case 6).
  • How are the rights of someone who has capacity for a decision but is subject to coercion protected (Case 4)?
  • The limits of the court in enforcing their judgments (Case 4 and Case 5).
  • Best interests decisions made in the context of serious disagreements among relatives and professionals (Case 5).
  • The importance of relationships with friends (Case 5 and Case 6).
  • The importance of acknowledging relationships with pets (Case 6 and Case 7).
  • The importance of proportionality when considering sexual relationships (Case 8).
  • Differences in how capacity is treated in civil and criminal courts (Case 8).

 

Case Law and Legal Summaries April 2017

This edition considers issues including:

  • What is reasonable practice in reducing a care package where a person has capacity and is objecting to the reduction (Case 1)?
  • The role of the Court of Protection in considering a care package for someone who lacks mental capacity (Case 2).
  • A reminder of the decision-specific nature of mental capacity (Case 3).
  • The powers of responsible clinicians and mental health tribunals to authorise deprivation of liberty (Case 4).
  • News of cost reductions for registering lasting powers of attorney and protection of people’s rights in advance care planning.

 

Case Law and Legal Summaries March 2017

This edition focuses on the Law Commission's proposals for the Liberty Protection Safeguards (LPS), a replacement for the Deprivation of Liberty Safeguards (DOLS). We outline:

  • Changes to the wider Mental Capacity Act 2005 (MCA) on page one.
  • An overview of suggestions for a legal framework to replace the DoLS – the Liberty Protection Safeguards (LPS) (page two).
  • The essential roles and functions of the LPS (page three).
  • The arrangements for obtaining an authorisation (page four).
  • The safeguards for the person’s Article 5 rights (page five).

 

Case Law and Legal Summaries February 2017

This edition considers issues including:

  • The state’s responsibilities in situations where the arrangements are entirely private (Case 1).
  • That some medical settings do not come within Article 5 so the ‘acid test’ described in Cheshire West does not apply (Case 2).
  • The limitations of the powers of the courts to compel a relative to return MM home to England from Portugal (Case 3).
  • Difficult questions around the autonomy and best interests of women who have strong wishes but lack the capacity to make the relevant decisions (Cases 4 and 5).
  • News of a forced marriage protocol.

 

Case Law and Legal Summaries January 2017

In this edition we look at interesting and varied questions that have been addressed by courts:

  • What are the roles of Relevant Person’s Representatives (RPRs) and Independent Mental Capacity Advocates (IMCAs) in supporting someone to challenge a DoLS authorisation (Case 1)?
  • How are the person’s rights to be protected when there is no public involvement in their care (Case 5)?
  • How should decisions be made about continuing or removing life-sustaining nutrition and hydration for people who are unlikely to get better (Case 2 and Case 3)?
  • A reminder that a lack of mental capacity is not always permanent (Case 6).
  • News of an update of Care Act 2014 Guidance with regard to ordinary residence.

 

Case Law and Legal Summaries November 2016 (open access)

This edition considers issues including:

  • 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 2Case 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.
  • How to use the new COPDOL form 10.

 

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