The Supreme Court will hand down its judgment in the case of N v ACCG and others on 22 March 2017
The bare bones facts of the case are that the appellant's son, MN, has complex disabilities and lacks capacity to litigate and to make decisions for himself. He lives in an adult residential placement in the area of the first respondent, who has refused to fund home visits. The Court of Protection then refused to undertake an assessment of whether home visits were in MN's best interests, on the basis that they did not have jurisdiction to do so since home visits were not an available option. The appellant appealed.
The Supreme Court heard the appeal on 15 and 16th December and the judgment will look at two key issues:
The appellants were making applications relating to a breach of their human rights with regard to contact with the P. They argued that the judge's dismissal of the outstanding claims on their behalf for a declaration and damages in respect of alleged breaches of their human rights, was wrong in law, inadequately reasoned, and a perverse exercise of discretion. They also appealed against the judge's dismissal of their application to dismiss the P's RPR. Both applications were refused.
Read the full text of the judgment on Bailii
The Law Commission has published it's consultation report on the operation of DoLS after the Cheshire West case. They were asked to carry out the review by the Department of Health in 2014 in recognition of the explosion of applications following the decision.
After a public consultation in 2015, the Commission has recommended that the current deprivation of liberty procedure be replaced by Liberty Protection Safeguards. In contrast to DoLS, which simply authorise a ‘deprivation of liberty’, the new safeguards would
“authorise particular arrangements for a person’s care or treatment insofar as the arrangements give rise to a deprivation of liberty. This is an important difference. It focuses attention at the authorisation stage not simply on the binary question of whether a person should be deprived of their liberty or not, but on the question of the ways in which a person may justifiably be deprived of liberty.”
Importantly, this would cover more than one setting so that a fresh application would be unnecessary for say a planned admission to hospital.
In total the Commission makes 44 recommendations and they are set out in Appendix C of the report. They are summarised in the accompanying press release broadly as follows:
A draft Mental Capacity (Amendment) Bill can be found in Appendix A.
You can read the full report on the DoH website here and the accompanying press release here.
These Rules amend the Court of Protection Rules 2007 in two respects. They:
Read the SI here.
Court of Protection model no longer compatible with latest international human rights, argue Cardiff researchers
A team of researchers from Cardiff University think that the Court of Protection’s ‘low participation’ model is ‘no longer compatible with developments in international human rights law’. As a result they feel there is
“an urgent need to address the model of participation of P in the CoP. This will require revisions to the rules and practice directions, through increased resources for various elements of participation, and by addressing the question of when and how cases should come to the CoP. “
Their thinking is presented in a research report published this month that looks at The Participation of P in Welfare Cases in the Court of Protection. The team of Lucy Series, Phil Fennell & Julie Doughty consider different elements of participation in the CoP in turn, highlighting some particular concerns as below:
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