The UK’s Court of Appeal has ruled that people without mental capacity must be involved in legal proceedings about their liberty. The move could affect people with autism who may find it impossible to partake in court procedures.
Andrew Caplen: “The rights of patients to participate in legal proceedings about their liberty were at risk”
The judgment will help people who cannot consent to restrictions on their liberty. It will include those being cared for in hospital, care homes or supported living with conditions such as autism, learning disabilities and Alzheimer’s.
The ruling 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 that affect their liberty. This can include restraint, restrictions on their movements, or on visitors, or enforced medical treatment.
Andrew Caplen, president of the Law Society, which lodged the appeal, said that it is “essential” that people living with a learning disability should have the care and treatment that is in their best interests.
He said: “The Law Society lodged an appeal because the fundamental rights of patients to participate in legal proceedings about their liberty were at risk.”
He added: “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.”
• The Mental Capacity Act 2005 imposes Deprivation of Liberty Safeguards (DoLS), which aim to ensure that people lacking capacity and residing in care homes, hospitals and supported living environments are not subjected to unnecessary or overly restrictive measures in their day-to-day care.
DoLS require assessment and authorisation of restrictive measures on a person’s liberty and in some circumstances court authorisation. Liberty-restricting measures, such as regular and/or prolonged restraint, should be considered only as a last resort and when it is in the best interests of the individual and other less restrictive options have been exhausted.
• The Court of Protection was established under the Mental Capacity Act 2005 and decides on issues relating to mental capacity. It has jurisdiction over questions relating to both health and welfare and financial affairs and is regularly called upon to decide upon applications for authorisations under the Deprivation of Liberty Safeguards regime.
Published: 16 June 2015
