Mental Capacity and the Court of Protection

  • Overview
  • Working with clients
  • Case studies
  • Our team of specialists are lawyers with impressive credentials and an aptitude for giving clear legal direction. We are market leaders for Court of Protection, mental health and capacity advice and continue to be involved in many of the most high profile, influential and important mental health and court of protection matters in England and Wales.

    We understand your organisation and the service users that you support. We know that many of your vulnerable service users have complex and challenging needs; who require restrictive and intensive packages of care and support:  

    • across a variety of care-settings; ranging from high-secure/specialist hospitals, general psychiatric low-secure/open units, rehabilitation centres, residential/nursing homes, traditional supported living placements, core and cluster models, "hospital-at-home", family home packages and own tenancy arrangements;
    • often involving invasive and ethically contentious interventions such as high-levels of physical restraint, seclusion, use of CCTV, removed-clothing personal searches, intercepting correspondence and monitoring/regulating telephone/face-to-face contact; and
    • frequently, there are disputes concerning the appropriate treatment, management technique and placement where mediation is required between health and social care professionals, family members and others involved in the service user's care. 

    They often require frameworks that operate at the interface between the Mental Health Act 1983 and the Mental Capacity act 2005 and our lawyers are able to advise on the inter-relationship between these regimes. 

    Not only do we have the technical expertise to competently advise your organisation on meeting its complex obligations and responsibilities owed to these vulnerable service users, but we have developed a series of innovative products and tools that will really meet your needs and help you solve the difficult dilemmas that arise. We recognise that you want products that provide:   

    • Practical help – for the professionals on the ground;
    • Reassurance that your organisation will comply with its legal obligations;
    • Cost certainty 

    Bevan Brittan's understanding of the needs of individuals who have complex behaviours has been essential in developing our legal position within the Court of Protection and with families.

    Programme Lead for Learning Disability Clinical Commissioning Group,

     

    We will support you and your organisation in these difficult cases. It’s important to us that you know who we are, and that we are dealing sensitively and sensibly with issues. We make sure that we are contactable and available and where issues arise quickly and urgently, we’re here. Emergency applications requiring out-of-hours action are not uncommon, and our team is fully geared up to respond with clear advice and expert representation.

  • “Best interests” is not defined in the Mental Capacity Act 2005; instead there is a framework or process to follow to work out what is in a person’s “best interests”. It is entirely possible, and actually quite common, for two individuals to conscientiously apply the process but arrive at different views as to where best interests lie.  We have extensive experience advising health and social care professionals in relation to best interest matters.

    It is not unusual for there to be disputes as to best interests; between professionals and family members, between health and social care professionals within the team or just between family members. We can formulate practical solutions to entrenched disputes; screen matters to determine if an application to court is necessary; and if required, provide expert legal advice including representation at court.

    With the national drive for more care packages, for increasingly complex service users, to be delivered in a “home” environment, there is a growing need for restrictive practices and interventions – that traditionally would only have been carried out in a hospital setting – to be delivered in the community. Examples include, but are not limited to:

    • Use of CCTV for monitoring;
    • Significant levels of physical, mechanical or chemical restraint or sedation;
    • Seclusion;
    • Monitoring and regulating access to correspondence, emails and telephone calls / restricting access to the internet;
    • Searches of person or property;
    • Managing social, familial or sexual contact.We can save your organisation time and money in focussing only on issues that need to be addressed. We have invested in producing new cost-effective ways of working which help your organisation do what is right by its service users in a way which is proportionate. 

    Our team can:

    • Formulate practical solutions to entrenched disputes;
    • Screen matters to determine if an application to court is necessary;
    • If yes:
      • Provide templates and guidance for compelling evidence;
      • Support your staff to deliver their evidence confidently and competently;
      • Manage the risks to your organisation;
      • Effectively represent your organisation with experienced advocates;
      • Ensure that you are acting within the law at all time.We've developed:
      •  
    • Use of CCTV in Care Packages Knowledge Pack
    • Seclusion Knowledge Pack
    • Quick Reference Guides for front line staff
    • Fixed fee training packages
  • Re RD and Others [2016] EWCOP 49

    We were instructed to represent a CCG in one of five applications listed before Baker J as 'test cases'. These applications were brought by the Official Solicitor and various paid advocates who sought judicial guidance on the circumstances when a court application under section 21A Mental Capacity Act 2005 should be issued to challenge a standard authorisation, particularly where it is not clear whether the individual wishes to apply to court. This issue goes to the heart of Article 5(4) of the ECHR which provides that anyone deprived of his liberty shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court. 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.

    RS v LCC & Ors [2015] EWCOP 56

    In which the question of the responsibility of NHS bodies and or local authorities to provide reports under section 49 of the Mental Capacity Act 2005 at no cost to the parties was considered for the first time in a reported judgment.

    MASM v MMAM [2015] EWCOP 3

    In which the legal status of declaratory orders on the Court of Protection and the consequences for deliberate defiance of them were considered. The issue in question was whether or not taking out of or helping a patient leave the jurisdiction in the middle of Court of Protection proceedings was a contempt of court.

    J Council v GU and others [2012] EWHC 3531 (COP)

    We advised the applicant Mental Health Trust and CCG – one of the most important cases concerning Article 8 interferences and the expectation of the legal framework to support these interferences. This matter involved a person cared for under a Community Treatment Order under the Mental Health Act 1983 in a private residential care home, where he was subject to restrictive and invasive practices, including removed-clothing searches when leaving the unit and monitoring of his correspondence and telephone calls. His care was subject to a Standard Authorisation under the Deprivation of Liberty scheme and the case concerned the scope of the safeguards required to preserve the Article 5 and Article 8 rights.

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