Application to challenge a standard DoLs authorisation. The court ruled that a second expert should be instructed before a decision could be made as to the Patient's capacity to decide where he would live.
Charles J judgment in which he tackles streamlined (Re X) non-contentious deprivation of liberty cases and the problem where no family members or friends of the Patient are able or willing to act as Rule 3A (now Rule 1.2) Representatives.
Appeal against a decision involving the deprivation of liberty of a 16 year old boy. The appeal was allowed on one ground.
LA's application for permission to deprive the child Patient of his liberty in circumstances where there was no secure accommodation available.
The Patient, a 13 year old child, had displayed a desperate history and catalogue of very seriously uncontrolled behaviour, damaging both to himself and to others. As a result he had been placed in no less than six different residential settings. Each such setting ultimately broke down, sometimes very rapidly, as the staff there were simply unable to manage his behaviour and keep him safe. The LA would have wished by last June to place the child in an approved secure accommodation placement. Such placements are currently very scarce and they were unable to find one. So it was that they hoped to place him in a unit which is not approved secure accommodation at X. Their plan was, however, that within X he should, if necessary, be subject to considerable restraint, including physical restraint, in order to keep him safe and prevent him from absconding, as he had done on occasions in the past. It is not necessary to apply to the High Court for a secure accommodation order. However, as no approved secure accommodation was available, the LA required the authorisation of a court for the inevitable deprivation of liberty of the child which would be involved.
Mr Justice Holman expressed his concern over the way in which applications of this sort are handled, saying that "the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. There is a grave risk that the safeguard of approval by the Secretary of State is being denied to some of the most damaged and vulnerable children. This is a situation which cannot go on, and I intend to draw it to the attention of the President of the Family Division." The judge ordered that the child now be joined as a party to these proceedings and Cafcass must forthwith allocate a guardian to act on his behalf. A further hearing was ordered to be fixed in one month.
Read the full text of the judgment on Bailii
Application brought on behalf of the Patient by way of a challenge to a Standard Authorisation authorising the deprivation of his liberty at a care home for six months expiring on 2nd August 2017. The application was dismissed.
Whether, in order for the United Kingdom to avoid being in breach of Article 5(1) of the European Convention on Human Rights (“the Convention”), it is necessary for a welfare order to be made by the Court of Protection (“the CoP”) pursuant to the Mental Capacity Act 2005 (“the MCA”) in a case where an individual, who lacks the capacity to make decisions about where to live and the regime of care, treatment and support that he should receive, is to be given such care, treatment and support entirely by private sector providers in private accommodation in circumstances which, objectively, are a deprivation of his liberty within the meaning of Article 5(1) of the Convention (“Article 5(1)”).
This application before District Judge Bellamy concerned the legality of providing covert medication to patients subject to DOLS authorisations and the attributability of the State.
This case considered the State’s positive obligations under Article 5 ECHR and whether such obligations extend to cover individuals who fall under care within the private sector.
Care proceedings brought by a local authority in relation to X, a boy of 10, and also an application to authorise them to deprive X of his liberty by accommodating him in Y Home.
It was acknowledged by all that if X was to remain at Y Home there would need to be a declaration in the High Court authorising the Local Authority to deprive X of his liberty as far as was necessary to keep him there. The Local Authority would be authorised to deprive X of his liberty but do not need to do so if it is not in their view necessary (a permissive order).
Whether the court should grant the Local Authority leave to invoke the inherent jurisdiction. Keehan J has considered this point in AB (A Child: Deprivation of Liberty)  EWHC 3125 (Fam) where he sets out therein why section 25 of the Children Act 1989 is not an appropriate way of dealing with such cases.
This case concerned long-running proceedings relating to a young man aged 26, M, and had been ongoing for two years. His parents E and A, whilst the court found they greatly loved their son, had, in an earlier judgment of Baker J, (Re M  EWCOP 33] found that whilst M had ASD and a learning disability, his parents had fabricated his reaction to an MMR vaccination. They had claimed it had caused autism in M and had given many fabricated accounts as to his health, caused M to be subjected to unnecessary tests and interventions, failed in relation to dental treatment to obtain treatment and E as M’s deputy had controlled all aspects of his life and restricted access to him by number of professionals. The court found that these behaviours amounted to factitious disorder imposed on others and additionally E had a combination of personality disorders – narcissistic, histrionic and emotionally unstable.
The key issues in this judgment focused upon the identity of the deputy, deprivation of liberty, disclosure and publication of information relating to proceedings and some miscellaneous issues.
Case summaries & Editor's comments on every Court of Protection case & other relevant decisions with links to the full judgment where available.
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