DOLsPeople 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 has declared.

The judgment affects people being cared for in hospital, care homes or supported living with conditions such as Alzheimer’s disease, 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 that 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.

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“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,” said Law Society president, Andrew Caplen. “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.”

This latest judgment follows the landmark Supreme Court case of P v Cheshire West & Chester Council; P & Q v Surrey County Council in 2014 [link to story], 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.