Specialists in mental health and mental capacity law

Hythe Life Magazine, Summer 2015


A court in London, the Court of Protection,  responsible for overseeing the rights of many of those based in care has just introduced new rules to handle the expected rise in legal challenges for the most vulnerable in our society. 

The new rules started from 7th April this year. In a little publicised judgement last year, Britain’s Supreme Court granted substantial new rights to many people placed in care homes, be they young or old. The new decision has far-reaching implications for both care-home residents who lack capacity, and for their families, as well as for local and health authorities. The judgement extends the right to independent legal review with, in some circumstances, free legal aid to obtain these rights.

The Court’s decision concerned the role of the Mental Capacity Act in depriving care home residents of their liberty on account of a lack of mental capacity. Typically this lack of capacity might be caused in older people by dementia and in younger people forms by autism or brain damage. Until this recent judgement the legal implication of preventing residents from leaving care homes and, for example, forcibly medicating them was frequently held not to give rise to legal rights as long as these actions were in the “best interest” of the resident.

In the case known as Cheshire West the Supreme Court provided new clear legal rights for care home residents. The Court held the key issues to trigger such rights was first whether the resident was supervised and controlled by staff and secondly was not free to leave the institution. 

The Court accepted that it would be often necessary to detain residents in institutions in their best interests but held that when this happened there had to be a legal authority for this and there had to be the right of an independent legal review.

In practice what this means is that if a care-home manager considers that a resident is detained, he or she must make an application to the local authority for such detention to be “authorised” under the Mental Capacity Act. This request triggers a review by the local authority who must appoint a “Best Interest Assessor”, usually a social worker from outside of the area, to consider whether the resident is detained, whether they have a “disorder” such as dementia, and whether it would be in their best interests to remain detained in the care home. Critically there is a requirement to consult family members, as well as the resident, as part of this process. In addition to taking a view on the appropriateness of any detention, the Assessor can make recommendations as to improving care and the placement generally. “Authorisations” can last for up to a year when another Best Interest Assessor must be appointed and there is a further review. The assessment documents will be of real value for family members wishing for an outside view of the care that is being provided and whether it could be done in a less restrictive way.

If at any point either the resident, or a close family member on behalf of the resident, wish to challenge the deprivation of liberty they can use a fast track procedure to appeal to the Court of Protection. Free legal aid - that is without means testing - should be available for this procedure from specialist solicitors with a legal aid contract. In addition the local authority has a duty to assist in providing a Mental Capacity Advocate to help, both generally in advising as to legal rights, and to help gaining access to the Court of Protection as well as identifying specialist solicitors to make court applications.

In the majority of cases residents will not want to challenge their placement and family members will be happy with the care being given. However the annual reviews by a Best Interest Assessor do act as a valuable review as to standards within the home and give a real opportunity for independent recommendations as whether care might be given in a less restrictive way. These reviews will lead to proper legal scrutiny of the arrangements for the care home resident and might consider whether, for example, a return to their original home, or perhaps to that of a family member with an improved care package, should be arranged. Such recommendations might be especially significant in times when local authorities are making cuts in social care provision. The right to direct legal challenge is also a critical right for the minority who feel that detention is not warranted

Those detained on account of their lack of mental capacity are amongst the most vulnerable in our society. Those, for example, with dementia have frequently paid a lifetime’s taxes and worked to support their families for many decades. In these new provisions the Court has provided well-deserved safeguards for all such citizens.

Richard Charlton 


  1. Richard Charlton is Director of Richard Charlton Solicitors www.richardcharlton.co.uk in Folkestone Kent and is President of the Mental Health Lawyers Association www.mhla.co.uk , the Association which represents specialist lawyers in the field.
  2. The case which was heard on 19th March 2014 in the Supreme Court was P v Cheshire West. Subsequent judgements in a case called re X last year have tried to get a practical framework for review on the new rights.
  3. The new rules are the The Court of Protection (Amendment) Rules 2015
  4. It appears, according to the Care Quality Commission, that there are over a 1000 care homes in East Kent alone.
  5. For further information Richard Charlton be contacted at rcharlton@richardcharlton.co.uk and 01303 298326.


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