Appeal against a court decision that the P lacked capacity to make decisions about his residence and care. The appeal was allowed.
The P lives in a care home having suffered from a stroke in 2004. The LA granted a standard authorisation for deprivation of liberty which was due to expire. The LA was under an obligation to review how the P could meet up with his friend as a condition of the authorisation. The court concluded that the P lacks capacity to make decisions with regard to his care and residence and also, given the quality of evidence on the P's capacity, ordered a s.49 report for further evidence on capacity and best interests issues to be obtained by the parties. The P's ALR appealed on 4 grounds:
Ground 1: The judge wrongly failed to terminate the standard authorisation;
Ground 2: The judge wrongly approached the question whether to make a declaration of incapacity as a best interests decision;
Ground 3: The judge's order is in breach of Article 5(4) ECHR;
Ground 4: The judge's order is in breach of Article 8 ECHR.
The court allowed the appeal. Where a standard authorisation is in place, it remains in force until (i) its expiry date is reached; (ii) it is suspended, under sch. A1, part 6; (iii) the supervisory body terminates it; or (iv) the court terminates it, under s. 21A. For as long as the authorisation is in force, it provides the authority for the deprivation of P's liberty. When s. 21A proceedings are brought, the court's function is to 'determine' questions as to whether the qualifying requirements are met and to consider varying or terminating the authorisation in light of its determination of the questions.
Read the full text of the judgment on Bailii
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