Court of Protection
What is the Court of Protection?
The Court of Protection was created under the Mental Capacity Act 2005. It has jurisdiction to make decisions relating to property, financial affairs and personal welfare for people who lack the mental capacity to make decisions for themselves.
Deprivation of Liberty Safeguards (DoLS)
If an individual (P) has been assessed as lacking mental capacity and they are unable to make decisions about where to live and what care to receive, it may be necessary for others to make this decision on P’s behalf. A best interest decision will be made and if that decision is for P to be detained in a care home or hospital then there needs to be an authorisation and a deprivation of liberty safeguard must be granted by the local authority.
The DoLS framework is there to protect the rights of P who has been detained in a care home or hospital setting. It ensures that the Human Rights of the individual are maintained. A DoLS can be granted in locations other than a hospital or a care home, but these would have to be authorised by the Court of Protection as opposed to the local authority.
Challenging a DoLS in the Court of Protection
Article 5 of the European Convention on Human Rights provides for a right to personal liberty and freedom. It does however, permit the lawful detention of persons with unsound mind in accordance with a procedure prescribed by law. The DoLS framework provides this procedure, but Article 5 also requires provisions to be in place for those deprived of their liberty to have the right of access to prompt judicial proceedings to challenge the lawfulness of their detention. This is where the Court of Protection comes in; those who are on a DoLS have the right to appeal the decision to be detained, by what is often referred to as a s21A appeal. Section 21A of the Mental Capacity Act 2005 provides the right to appeal a decision made on behalf of P, for example, where they should live or what care and treatment they should receive. An appeal can also be made if there is belief that the requirements for the DoLS are not met, for example, if there are reasons to believe that P has the capacity to make decisions about where he/she should live, or the deprivation of liberty is not in their best interest.
Personal Representatives, s39D IMCA’s and Family Members
Recent case law has made it clear that Personal Representatives have a positive obligation to assist P in challenging their deprivation of liberty when P is clearly and consistently objecting to their care arrangements. The difficulty arises where P is unable to clearly express their views; this is a grey area in which representatives will need to assess and use their discretion in accordance with the guidance provided by recent case law.
At Thaliwal & Veja Solicitors, we have a dedicated Court of Protection department that specialises in s21A appeals and in providing expert advice and assistance to personal representatives and concerned family members. We are contracted by the Legal Aid Agency to provide publicly funded (formerly Legal Aid) services for s21A appeals. This is non means tested and so is available for all eligible appeals, regardless of P’s personal finances.
We provide advice and assistance on any matters relating to Deprivation of Liberty Safeguards, Court of Protection and the Mental Capacity Act 2005.
Speak to one of our specialists who will be able to guide and advise you on the best course of action. Our team offers impartial and independent advice with your interest being our main priority.