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Powers of restraint: the path of least intervention?

Date:31 MAR 2015
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Pupil Barrister

Recent Court of Protection case law on 'the least restrictive option'.

When asked to approve a Deprivation of Liberty the Court of Protection (COP) operates under a strong presumption of minimal restraint and intervention. This reflects the ECtHR stance on proportionality and resounds with other provisions for state intervention such as in children law where s 1(5) of the Children Act 1989 sets out a ‘no order’ presumption. Recent COP case law has nuanced this presumption somewhat so it is worth returning to the starting point – s 1(6) of the Mental Capacity Act 2005 (the 2005 Act) which reads (emphasis added):

‘Before the act is done or the decision is made regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.’
The recent case of Mental Health Trust & Ors v DD and BC [2015] EWCOP 4 has...

Read the full article here.