The LA was seeking declarations in relation to the P’s capacity in a number of areas of her life.
Applications brought under the Mental Capacity Act 2005 seeking section 15 declarations in relation to the P's capacity to make a range of relevant decisions and various best interests' determinations; and further seeking authority to deprive the P of his liberty at his accommodation and in the community. The applications were granted.
Judgement, following an earlier extempore judgment by Hayden J, concerning the framework of applicable law where the Court is faced with making an anticipatory decision that may result in the deprivation of P’s liberty should they lose a capacity in the future, where the matter was urgent and where the health of an unborn child was also at stake.
Applications to reconsider capacity rulings in relation to the P, particularly in relation to sexual relations and contraception and to review the best interests provisions in the light of any change that the court may make to the declarations.
Application which had been made under the streamlined procedure set out in Part 2 of Practice Direction 11A for authorisation of deprivation of liberty was not the correct procedure in this case.
The issue in this appeal was whether it is within the scope of parental responsibility to consent to living arrangements for a 16 or 17-year-old child which would otherwise amount to a deprivation of liberty within the meaning of article 5 of the European Convention of Human Rights (ECHR), in particular where the child lacks the mental capacity to make the decision for himself.
Appeal against a decision which justified the P's deprivation of liberty was allowed.
The High Court exercised its inherent jurisdiction and authorised a deprivation of liberty in respect of the capacitous P.
The LA was ordered to pay half of the Official Solicitor's costs because of the LA's failure to make a timely application to review the P's deprivation of liberty, thus necessitating the involvement of the OS.
A review of the P's deprivation of liberty was not made by the LA in accordance with a previous court order, leading to delays in arranging an alternative placement for him and also the involvement of the OS. The OS was seeking a costs order against the LA in the sum of over £25,000, saying that but for the conduct of the LA, the streamlined procedure may have been appropriate. There would therefore have been no need for the OS to act (and incur costs) at all. The involvement of the OS was necessary and appropriate primarily because of the conduct of the applicant authority in failing to make timely application for review; or alternatively because, having failed to make a timely application, the placement had broken down and an urgent move was required.
The court ordered the LA to pay half the costs incurred by the OS. The explanations for the failure to comply with the requirement to apply for review, in so far as any explanations had been offered, were wholly inadequate. However, the court was not persuaded that a timely application for review would have avoided the need for the Official Solicitor's involvement completely.
Read the full text of the judgment on Bailii
Sir James Munby ruled that proceedings in relation to 16 and 17 year children who were subject to care orders and DOLs should remain in the Family Court and not be transferred to the Court of Protection.
Case summaries on every Court of Protection case & other relevant decisions with links to the full judgment where available.
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