10 years of the Mental Capacity Act 2005: Exploring the welfare jurisdiction of the Court of Protection

Ten years is not a long time in terms of establishing law.  The Court of Protection is an ever-evolving beast developing through case law.  As a result, there has been extensive case law on this matter and these are just some of the cases which I consider are important.  Although I have listed them as my top ten, this is by no means a definitive list and could not possibly cover all the important developments.  This is a snapshot of those cases that have been particularly influential.

1. HL v United Kingdom [2004] All ER (D) 39 (Oct) – commonly known as Bournewood.  This was the famous case that identified a gap in the law (a lack of procedural safeguards) that did not cover those lacked capacity and were being deprived of their liberty.  This case led to changes within the MCA with the introduction of Schedule 1 and deprivation of liberty safeguards
2. Re F [2009] EWCOP B30 confirmed that the threshold for bringing proceedings within the Court of Protection is low.   All that is required is ‘evidence giving good case for concern that P may lack capacity in some relevant regard’.
3. P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and another [2014]. The case known to all as Cheshire west – it changed the way we deal with deprivations of liberty – opening the potential for a myriad of deprivations in all situations.  The famous quote ‘a gilded cage is still a cage’ and the ‘acid test’ set out the criteria for trying to establish if someone is a subject to a deprivation of their liberty.  The acid test being whether an individual who lacks capacity is under constant supervision and is not free to leave.
4. Re X  and others (deprivation of liberty) [2015] 2 All ER 1154– a case looking at how to deal with the occurrences of deprivation of liberty in supported living and P’s own home, which need to be court authorised as they are not covered by the deprivation of liberty safeguards in order to look at streamlining the process for the court authorisation.
5. Essex County Council v RF[2015] EWCOP 1 – sets out the tariff of damages to be awarded where an individual wouldn’t have been detained (subject to a deprivation of liberty safeguards) if a public authority had acted lawfully.
6. Re NRA [2015] EWCOP 59 – confirmed that it is not necessary for P to be joined as a party, in cases to authorise a deprivation of liberty, where a family or friend could act as a Rule 3A representative.
7. Re RD and Others [2016] EWCOP 49 – sets out the duties and powers of Relevant Paid Representatives (RPR) and s39A IMCAS, and when a challenge should be brought under s21A to challenge a deprivation of liberty authorisation.
8. Secretary of State for Justice v Staffordshire County Council and other [2016] EWCA Civ 1317 – confirmed that P’s circumstances – that he was privately funding care in his own home, without the input of the Local Authority (and therefore the State) could amount to a deprivation of liberty.  In the specific circumstances of the case, it was decided that there was a deprivation of liberty (which needed to be court authorised) as knowledge is enough to impose an indirect responsibility on the state.  Therefore if a Local Authority is aware of circumstances which could amount to a deprivation of liberty then this triggers a positive obligation to investigate and either bring that deprivation to an end or authorise the same.  This case has potentially led to an increase in a number of cases brought to Court by local authorities where they consider a privately arranged package of care could constitute a deprivation and would need to be authorised by Court.
9. Birmingham City Council v D and another EWCOP 8 [2016] confirmed that when a child turns 16 a parental cannot consent to a deprivation of liberty on their behalf and therefore the Court need to authorise the same.   Therefore in those situations where a 16 or 17 year is deprived of their liberty (regardless of the context), the case must be brought to Court by the local authority.
10. N & ACCG and others [2017] UKSC 22 – confirmed what the Court can do when making a decision for those who lack capacity – the powers available to the Court.  This was confirmation as to what the Court should do when there is a dispute between funders of services and members of the family as to what should be provided for P.   The Court can only make a decision on behalf of P that P could have taken himself.   The court should use their case management powers and could take the view that no useful purpose could be served by having a hearing.  The decision for the Court is a choice between available options.

So, where to now?  Well, I think we will see more cases trying to assist with streamlining court authorisations of deprivations of liberty.  Court of Protection remains a relatively new area, expanding and re-defining itself continually.  This makes working in this area exciting and challenging.

If you would like to discuss these cases or the Court of Protection further, please contact Kirsty MacMillan.

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