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Mental Capacity Cases

Case Study 1

In the case of JS ( the person lacking capacity “P”) a mental health advocate (an IMHA) was greatly concerned that P wished to go home and was clearly detained in a nursing home. P was attempting to leave the care home whenever possible, and voicing her desire to return to her existing flat and was frequently forcibly returned by staff.  On enquiries the client had not been detained under the Mental Capacity Act and urgent representations were made with respect to this. As a result, an assessment was made that confirmed that the client was deprived of liberty under the Act and an urgent authorisation put in place.  An Independent Mental Capacity Advocate (IMCA) was appointed but took the view it was in P’s interests that she remained in the care home and would not assist in any application to the court.  Family members were not prepared to assist. The solicitor advised the client directly and took the view that the client had litigation capacity (at least to be clear as to the wish to return home and her agreement to receive support there) to make an application to the court. The solicitor, therefore, made an application on P’s behalf to the Court of Protection with a supporting statement. There was no one else to make the application and the Official Solicitor confirmed they could not do this. The local authority strongly contested that the client had capacity and said that the case should not have come to court in this way and sought for a Litigation Friend to be appointed. However subsequent to the application being made and an initial directions hearing, the local authority reviewed their care plan and agreed at a subsequent best interest meeting that more support could have been offered for JS at home and this was then offered. As a result P moved back home with enhanced support and proceedings were discontinued. The local authority was unreceptive at any time to make any application as recommended as per the case of LB Hillingdon v Steven Neary (2011) EWHC 1377. Richard Charlton acted for P in this case.

Case Study 2

In the case of JB, P had been placed in a nursing home by the local authority. It was said she was not deprived of their liberty. On a visit to see P she was very clear that she wanted to leave as soon as possible; was locked in and had been bought back when she had escaped forcibly. Representations made that P was indeed deprived of their liberty. The subsequent assessment agreed that this was position and an urgent authorisation was put in place. The IMCA refused to assist P in any application to the court as he said it was in her best interests to remain detained.  There was a strong dispute between P’s daughter and her brother who made allegations against each other of a safeguarding nature. The Official Solicitor had sympathy with P’s position and said he would act if the case got to court but in line with existing policy refused to make any application to the court. P clearly lacked capacity but the application was made by the solicitor on her behalf with a brief attached statement. This was accepted by the court. Subsequent to the application being accepted the Official Solicitor took over her representation as he had agreed to do informally prior to the application being made. Later during proceedings the local authority reviewed the care plan and JB was discharged back to her previous home with enhanced community support. The local authority was unreceptive to Neary arguments as to bringing any application. Richard Charlton acted for P and the Official Solicitor in this case.

Case Study 3

LE was the mother of P, her impaired adult son, and P wished to return to live with LE. An IMCA appointed stated that despite P’s wishes it was in his best interests to live away from LE. Unfortunately LE had a small income and her means were disputed by the Legal Aid Agency for many months preventing her issuing proceedings. Shortly after legal aid had finally been granted, after substantial pro bono work, proceedings were then issued. P then decided he would go AWOL from his placement and return to LE. The local authority considered making an application for his return but were aware that LE had legal aid and required any application to be made on notice within the proceedings.  LE argued that P(1) had capacity to make decisions as to residence and (2) that, if he was found to lack capacity as his wishes were so strong he should remain at LE’s home whilst being monitored. The court decided that, notwithstanding the local authority’s earlier concerns, that whilst they agreed P lacked capacity it was in his best interests that he should be allowed to remain with LE. Subsequently proceedings were discontinued with P living with LE with enhanced local authority support. Richard Charlton acted for LE in this case.

Case Study 4

In the case of HG, P, was a patient in hospital. He was said to be informal but tried to leave the ward on several occasions and had even a broken window trying to do this. He was always escorted back to the ward. The ward was a locked facility. Representations were made that the client was detained. Subsequently a deprivation liberty assessment was carried out which confirmed his detention and that this was under the Mental Capacity Act. The appointed IMCA felt P should remain in hospital and no challenge should be made. There was a dispute in the family as to what should happen to P. One relative finally agreed to make an application as litigation friend for P. She faced some criticism for this from other parties and the court, and the Official Solicitor finally took over P’s case However as a result the local authority amended their views with regards to a care plan for the community and the client was later discharged back to his previous home with enhanced support. Richard Charlton acted for P in this case.

Case Study 5

In the case of KL, P was very clear she wanted to leave the care home to live in her existing home nearby. The care home recognised that P was being detained and had authorised by detention under the MCA. There was a dispute amongst the family as to where it was in her best interests to live. The IMCA wanted P to remain in a care home and did not want to support an application to the Court of Protection. Finally one member of the family made an application under s21A and was criticised for this for this by other parties, including the local authority. Ultimately the Official Solicitor took over the case and an independent report recommended her return home. The case has yet to be finally concluded. Richard Charlton acted for P and the Official Solicitor in this case.

Case Study 6

In the case of PL, P was a young adult impaired from birth. She stayed with her mother at weekends and stayed within the local authority funded facility during the week. Safeguarding concerns, most of which were later disproved following fact-finding, arose for the local authority regarding contact with her mother. The local authority then halted all contact but made no application initially to the court. An appointed IMCA supported the lack of any application. The mother then, following much pro bono work by the solicitor, raised funds to make an application to the court (she not did qualify for legal aid), and the Official Solicitor then took on the role to represent P. Following detailed fact-finding and trial visits, staying contact for P and PL resumed as before. Richard Charlton acted for PL.

Case Study 7

In the case of EK, P was a young impaired adult. It was accepted she lacked capacity. She had been happy at a residential placement in the west of England funded by the local authority. However, with little notice the local authority informed they intended to move P to another facility. One possibility was to place P on a DOL to move her if she did not want to go. The reasons for the move were unclear and included both safeguarding issues (although not involving P) and cost. The family disputed that the move was in P’s best interests and P did not want to move. An IMCA was appointed who agreed with local authority position. Given the failure of best interest meetings to change the local authority position, Ps sister issued proceedings. The local authority had refused to issue to proceedings. Subsequent to initial directions, further best interest meetings took place and the local authority substantially widened the range of care homes it would consider. The P’s family found one acceptable with comparable levels of support, and assisted P to accept the move. Proceedings were discontinued before the Official Solicitor was appointed. Richard Charlton acted for P’s sister.

Case Study 8

W had a relapse in his mental illness, caused in part by a decision of his doctor to change his medication. His condition was complicated by some physical frailty. He was detained in hospital under the Mental Health Act and made progress in hospital. The local authority wanted him to be moved to a care home on discharge but he and his family wanted him to return home with a suitable care package to support him. A Mental Health Tribunal agreed with the family and directed his discharge at a future date however when the date came for the Tribunal’s discharge, W was further detained under the Mental Capacity Act. Immediate proceedings were issued in the Court of Protection to challenge this decision and within a week the local authority had arranged a care package to allow W to return home. The Court then formally terminated the deprivation of liberty for W. Richard Charlton acted for W in the Court of Protection proceedings.