Mr Justice Charles had to decide whether the positive obligations imposed by Article 5 or its spirit and so its purpose to protect individuals from arbitrary detention would be violated if, on a proper application of the domestic regime of law, supervision and regulation a welfare order is not made by the COP to authorise the P's private deprivation of liberty  (i.e. one where the P was not in a care home or hospital) within Article 5. He ruled that it would, expressing that he had "reached this conclusion with real reluctance because ... in this and many other such cases a further independent check by the COP will add nothing other than unnecessary expense and diversion of private and public resources which would be better focused elsewhere."

Read the full text of the judgment on Bailii

The problems with the Deprivation of Liberty Safeguards (DoLS) can be resolved only by wholesale replacement of the DoLS and reform of the law, according to the Law Commission.

This 'initial' conclusion is published in an interim statement following a four-month consultation as part of their current project looking into DoLs.

The statement sets out the background to the problem together with their latest thinking, including shifting the burden of  responsibility for establishing the case for a deprivation of liberty from the care provider to the commissioning body such as the NHS or local authority.

You can read the statement on the Law Commission website here.

The judge concluded that it was in the best interests of the Patient, a 36 year old lady with a diagnosis of paranoid schizophrenia who did not have the capacity to consent to or to refuse medical treatment for ovarian cancer, to undergo treatment even though it might deprive her permanently of the ability to have children.

Read the full text of the judgment on Bailii

The Office of the Public Guardian has published fresh guidance on the correct approach where deputies make care payments to family members who are providing care for someone who lacks mental capacity.

The note

• defines what is meant by a family care payment, sometimes called a ‘gratuitous care’ payment 
• sets out the legal framework, the deputy’s authority to make payments and the Public Guardian’s view on factors to consider when agreeing and calculating such payments 
• explains when the Public Guardian expects deputies to seek approval of payments from the Court of Protection (‘the court’) and when the Public Guardian will consider applying to the court over unauthorised payments.

​You can download the full document from the OPG website here.

Council's application to deprive the 10 year old Patient, who was on the severe  end of the autistic spectrum, of his liberty by accommodating him in a home.
​
Read the full text of the judgment on Bailii