mental capacity act and dols case law update - ben troke - july 2012

Mental Capacity Act and DOLS update • Life after Cheshire…

• Article 5 in European Court of Human Rights – Austin

• Deprivation of Liberty by Police – ZH

• DOLS case – EM

• Medical treatment – re E (anorexia)

• Inherent jurisdiction - DL

• News and resources

• concern about the ‘Cheshire’ test in practice

• best to avoid “purpose / motive / intentions / reasons”

• focus on the concrete situation

• err on side of caution

lawful DOL

no

DOL necessary

“purpose” no

DOL

“everyone has the right to liberty and security of

person. No one shall be deprived of his liberty save

in the following cases and in accordance with a

procedure prescribed by law”

Article 5 ECHR

• lawful arrest to bring to court

• lawful detention of … persons of unsound mind

lawful DOL

no

DOL necessary

“purpose” no

DOL

• European Court of Human Rights

15 March 2012

• rejected appeal – No DOL

• purpose / motive cannot be relevant to

whether there is a DOL

• “specific context and circumstances”

should be considered … (para 58-59)

• no common law “necessity”

defence survives if MCA s5-6

applies and is not met

• “purpose” and “intention”

relevant, but 40 minutes

restraint was held a DOL, as

“hasty, ill informed and

damaging”

• need to collaborate

between police and carers

• breach of Art 5 and Art 3

• compensation awarded

92 year old man –

cognitive impairment

standard authorisation in

a care home

EM wants to go home –

saying son will care for him

son, apparently, will not

capacity in dispute

Insert image

BMI: 11 – death imminent

does not seek death, but above

all does not want to eat or be fed”

OS sought declaration she lacked

capacity and for force feeding

commit to force feed to BMI > 17 –

over 1-2 years

32yo woman – anorexia, PD &

alcohol abuse

• previously (but not now)

detained under MHA

• dealt with under MCA –

held lacks capacity

• previously purported ADs

to refuse feeding –

declared invalid due to

lack of capacity when

made

• best interests?

– Autonomy vs Sanctity of

Life

living with DL - adult son -

in Mr L’s property

they all have capacity to make

decisions

LA concerned that DL is

aggressive and bullying

“inherent jurisdiction” to make

orders to protect Mr & Mrs L

Mr L (85yo)

Mrs L (90yo) - physically disabled

• DL argued – MCA is definitive

• LA said could be a new “Bournewood Gap”

• MacFarlane LJ – inherent jurisdiction not

explicitly abolished by MCA

• inherent jurisdiction not

explicitly abolished by

MCA, and “continues to be

available to act as ‘the

great safety net’…”

• when and how?

Draft Care and Support Bill

- 11 July 2012 • consultation until 19 October 2012

• duty on LAs to investigate suspected abuse / neglect (cl 34)

• establish SABs (cls 35-36)

• repeal s47 NAA 1948

• but

separate consultation on new

“safeguarding power”

• open until 12 October 2012

DOLS statistics –

March 2012

• nil applications

• inconsistency

CQC report on DOLS –

March 2012

“there continue to be cases where people who lack

capacity are deprived of their liberty without regard to

their human rights… the safeguards are no longer new and

both providers and supervisory bodies have had ample

time to train staff and develop policies”

CQC report on DOLS

Mental Health Alliance –

May 2012

• “implementation of DOLS has been extremely uneven…”

• recommends “major review”

www.bjlegaltraining.com

http://thesmallplaces.blogspot.co.uk/

http://autonomy.essex.ac.uk/

http://www.mentalhealthlaw.co.uk/Main_Page

Ben Troke | 0115 976 6263 | ben.troke@brownejacobson.com