Family Law

People who are unable to make decisions for themselves because they lack mental capacity should always be directly involved in court hearings about their personal liberty, the Court of Appeal said today.

The judgment Re X (Court of Protection Practice) [2015] EWCA Civ 599 affects people being cared for in hospital, care homes or supported living with conditions, such as Alzheimer's, autism or learning disabilities, which mean that they cannot consent to restrictions on their liberty.

The judgment means that streamlined procedures recently introduced in the Court of Protection should not prevent people who lack capacity from participating in or having legal representation at hearings which affect their liberty. This can include restraint, restrictions on their movements or on visitors, or enforced medical treatment. The procedures had been introduced in the Court of Protection to reduce pressure on that court, and will now need to be reconsidered.

Law Society president, Andrew Caplen, said:

'When someone is living with dementia or a learning disability, it is essential that the care and treatment which they receive is in their best interests. Sometimes that means providing treatment to which they are unable to consent. More and more families with elderly relatives are having to face that reality.

The Law Society lodged an appeal because the fundamental rights of patients to participate in legal proceedings about their liberty were at risk. We are grateful for being given permission to appeal.

We recognise the resourcing pressures on the Court of Protection, but anyone facing court proceedings which concern their liberty must be able to participate effectively in or be legally represented at those proceedings. We hope to work closely with the Court of Protection to resolve the issues brought to light by the judgment.'

Yogi Amin, Head of Public Law at Irwin Mitchell leading the case, said:

'This case revolves around the need to ensure that applications to authorise an individual’s deprivation of liberty are dealt with efficiently given the inevitable strain on resources, but that individuals’ rights are still safeguarded.

DoL applications all concern vulnerable and incapacitated people. There is a real need to ensure that applications to limit a person’s freedom are given the correct amount of judicial attention, and that individuals have access to the court in order to put forward their views, have access to legal representation, and to object to their deprivation of liberty if necessary.

Following this Court of Appeal judgment, it is clear that the individual at the heart of the each DoL application must always be made a part of the proceedings themselves. This may mean many local authorities will have to review their existing authorisations and ensure that the individual in question is properly represented at the next court review.'

Today's judgment follows the landmark Supreme Court case of P v Cheshire West & Chester Council; P & Q v Surrey County Council in 2014, which lowered the threshold for cases to go to the Court of Protection. This has increased the number of vulnerable people whose restrictions require authorisation by the Court of Protection.