The Court of Protection has ruled that people who are unable to make decisions for themselves (because they lack the mental capacity to do so) must always have access to independent representation in court hearings about their personal liberty.
The Court of Protection was established under the Mental Capacity Act 2005. It decides on issues relating to mental capacity. It has jurisdiction over questions about health and welfare and financial affairs. It is regularly called upon to decide upon applications for authorisations under the Deprivation of Liberty Safeguards regime.
The Law Society of England and Wales intervened in the case of JM & others to assist the Court of Protection in finding a solution to the lack of appropriate representatives who are available for vulnerable people in cases where decisions are made about their freedom.
Described by the Law Society as an unprecedented judgment, Mr Justice Charles, the vice president of the Court of Protection, said it was the responsibility on the government to ensure that each vulnerable person whose liberty is considered in the Court of Protection has appropriate representation when their case is under consideration.
The judgment was achieved by four test cases (JM & others), where no appropriate representative could be found for reasons which included lack of resources. It follows the landmark Supreme Court case of P v Cheshire West & Chester Council; P & Q v Surrey County Council in 2014, which lowered the threshold for cases to go before the Court of Protection.
The landmark case increased the number of vulnerable people whose restrictions need to be authorised by the Court of Protection.
Mr Justice Charles also ruled that in future, similar cases will be adjourned until a solution is found. This means that large numbers of such cases that relate to crucial health and welfare decisions, will now be pending indefinitely.
The president of Law Society, Jonathan Smithers, said that anyone living with dementia, Alzheimer’s or a learning disability must receive the treatment that was in their best interests, and cases could be about enforced medical treatment, restraint, limits on people’s movements or visitors.
He added that when vulnerable people didn’t have friends or family to represent them during decisions to restrict their liberty, it was vitally important that the person was able to take part in the decision-making process. Vulnerable persons must have legal representatives to protect their rights and their health and general welfare.
The Law Society gave evidence in this and other related cases because solicitors had told them that the rights of vulnerable people were at risk.
The Society said that while it recognised that the Court of Protection, local authorities and government budgets were stretched, those who were least able to defend themselves should not be sacrificed on the altar of austerity.
Jonathan Smithers added that the Society was looking forward to working with the Ministry of Justice to find a solution which would be in the best interests of the vulnerable people who cases came before the Court of Protection