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Many people in different care settings are deprived of their liberty by virtue of the type of care or treatment that they are receiving, or the level of restrictive practices that they are subject to, which they lack the mental capacity to provide valid consent for.
Deprivations of liberty are unlawful unless they are authorised by:
The recent changes in law mean that many situations which were not previously deemed to be a deprivation of liberty now are and require legal regularisation. The onus is upon YOU to ensure that all deprivations of liberty are identified and authorised. With the evolving case law in this area, it can prove problematic and you may find yourself asking questions such as:
The law and CQC say you MUST act to ensure that all people who meet the criteria must have their deprivation of liberty properly authorised.
The leniency afforded over the past couple of years is drawing to a close. Commissioners, providers and care co-ordinators are required to urgently identify service users who are deprived of their liberty and rapidly take steps to put the right legal framework in place. Our team identifies circumstances where there is a deprivation of liberty and work with you to ensure that the legal and practical issues are dealt with efficiently and cost-effectively; including streamline applications to the Court of Protection and challenges under s.21A.
Bevan Brittan has been extremely helpful and prompt with all the legal advice required regarding cases in the Court of Protection proceedings. The advice has also been clear in the expectations required in court and personally supportive in the most difficult cases we have been dealing with.
At Bevan Brittan, our expert team work at the cutting edge of Court of Protection litigation and have been involved in many of the key decisions made in the past 3 years. This experience and expertise means that our lawyers can identify circumstances where there is a deprivation of liberty and work with you to ensure that the legal and practical issues are dealt with efficiently and cost-effectively.
We have invested in producing new cost-effective ways of working which will help you identify deprivations of liberty expeditiously and process the necessary paperwork. We now offer:
Our team has designed a bespoke, online, interactive tool for completing a Re X streamline application to the Court of Protection in a speedy and cost effective manner.
The DoL Streamline Portal guides health and social care practitioners to prepare the necessary information for an application to the Court of Protection, which is then reviewed by a member of our team before we submit it to court for authorisation on behalf of your organisation. It is a practical solution to the significant challenge for organisations responsible for putting the legal frameworks in place, delivered at a low cost, but with the reassurance of appropriate legal advice and support. Key features include:
One of the most important challenges to the court of protection is how to ensure that vulnerable, incapable people can challenge steps taken to deprive them of their liberty. This is an issue at the heart of human rights where the need to protect has to be balanced against the need to respect autonomy and dignity. We acted in a test case brought before Baker J which considered how this issue should be managed by two classes of representatives under the Mental Capacity Act: Independent Mental Capacity Advocates (IMCAs) and Relevant Personal Representatives (RPRs). The case came down to finding some means of clarifying the legal boundaries which define when a patient can be said to be objecting to a deprivation of liberty and wanting to challenge it.
This case is important because it provides detailed guidance to RPRs and s.39D IMCAs to assist them in deciding whether or not they should bring an application to the Court of Protection to challenge P's deprivation of liberty. Prior to this decision there had been considerable uncertainty and regional variations in practice as to when a court application is required. Hopefully much of that uncertainty has now been resolved and unnecessary court applications will be avoided.
We acted on one of the cohort of Post-Cheshire West cases before the President of the Family Division, Lord Justice Munby (the Re X cases). This work included dealing with the impact of the lowering of the Deprivation of Liberty threshold in supported living accommodation cases. This debate remains at the forefront of the current Court of Protection difficulties in light of the changing legal position post Cheshire West. The case established the current Practice Direction 10A procedure.
We led a case involving the application of Deprivation of Liberty acid test in the community for a patient and the interface between safeguarding, Mental Health Act and the Court of Protection. The person was being cared for in the community (the only person with her condition being cared for at home in the country) but had to be sectioned to a mental health hospital due to the constant undermining of her care package by her family. Her family sought an injunction in the High Court and also appealed her mental health status to the Upper Tribunal. Bevan Brittan acted for the CCG responsible for her care package and led on proceedings in the various courts.
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