People who are unable to make decisions for themselves because they lack mental capacity must have access to independent representation in court hearings about their personal liberty, the Court of Protection has said.
The Law Society of England and Wales intervened in the case of JM & others to help the Court of Protection in its efforts to find a solution to the lack of appropriate representatives available for vulnerable people in cases where decisions are made about their freedom.
Law Society of England and Wales president Jonathan Smithers said: “Anyone living with dementia, Alzheimer's or a learning disability must receive treatment that is in their best interests, whether they are in hospital, a care home or a family home. These cases can be about enforced medical treatment, restraint, limits on people’s movements or on visitors. Many families will understand the challenges of making decisions for a relative who is unable to give their consent.
“When a vulnerable person doesn't have friends or family to represent them during a decision to restrict their liberty, it is vital that person is able to participate in the decision-making process. If this is not possible then they must have a legal representative to protect their rights as well as their health and general welfare."
In his judgment, Mr Justice Charles, vice president of the Court of Protection, placed responsibility on the government to ensure that each vulnerable individual whose liberty is considered in the Court of Protection has appropriate representation when their case is considered. The judgment was achieved by way of four test cases (JM & others) where no appropriate representative could be found for reasons including resource constraints.
Mr Justice Charles also ruled that all future similar cases will be adjourned until a workable solution is found. This means that large numbers of such cases, concerning what are often crucial health and welfare decisions, will now be pending indefinitely.
“We recognise that the Court of Protection, local authority and government budgets are stretched,” added Smithers. “But those who are least able to defend themselves should not be sacrificed on the altar of austerity.
“[This] judgment makes the government responsible for making sure vulnerable people are properly represented when important decisions are made about their care. We look forward to working with the Ministry of Justice to find a solution that is in the best interests of vulnerable people who come to the Court of Protection.”
The judgement follows the Supreme Court case of P v Cheshire West & Chester Council and P & Q v Surrey County Council in 2014 – often referred to as Cheshire West – which lowered the threshold for cases of deprivation of liberty to go to the Court of Protection. This has significantly increased the number of vulnerable people whose restrictions require authorisation by the Court of Protection.
Currently, the Law Commission is reviewing the Deprivation of Liberty Safeguards, and an interim report is expected in the spring.