Repealed and replaced by a new scheme called the Liberty Protection Safeguards, which would streamline the process for approving a deprivation of liberty. The Government's final response, published in March 2018, broadly accepted the Law Commission's recommendations.11 Feb 2019
Mental Capacity (Amendment) Bill - Parliament.uk
researchbriefings.files.parliament.uk/documents/CBP-8466/CBP-8466.pdf
Fom a Mother who has fought for the return of her son from care who has a learning disability, and for control of her sons financial matters by applying to be his deputy, we are aware of the pitfalls that can happen when it comes to children and adults with learning disability being held by the local authority in care placements.
The first port of call is to get a mental capacity report done to assess the young persons capacity to make decisions for themselves.
In the even that the person deprived of their liberty does not have the mental capacity to make these decisions their views still hold weight in these cases.
A person with limited mental capacity can chose a reprisentitive who can advocae for them. This can be a parent or personal guardian, someone that they can trust.
A parent or the person they can trust can apply to the court to
1.) Be the person’s littigant friend.
A ‘litigation friend’ is a suitable person appointed by the court to represent a ‘protected party’. The litigation friend must act in the protected party’s best interests and can give instructions on the behalf of and make decisions for :
An adult who lacks mental capacity to conduct their own court case either with or without a solicitor
A child
An adult or child with a litigation friend is called a ‘protected party’. If no suitable person comes forward, the Court can ask an Official Solicitor to step in.
Typically a suitable person may be a parent or guardian, an adult child, another family member, a solicitor, a Court of Protection deputy, a professional advocate or an Independent Mental Capacity Advocate. If the protected party is awarded compensation, the court will need to approve the settlement.
The litigation friend is responsible for filling in the correct forms and bringing them to the court approval hearing. If the protected party is a child, there will be an infant approval hearing and a certified copy of the child's birth certificate must also be lodged with the Court along with the correct court form.
How to apply
Download and fill in the relevant form to apply in the:
You’ll need to provide evidence that the person you want the court to appoint:
Deliver in person (‘serve’) a completed copy of the relevant form to the:
parent, guardian or carer if you’re applying to get a litigation friend appointed for a child
deputy, attorney with a lasting power of attorney or enduring power of attorney, or carer if you’re applying to get a litigation friend appointed for an adult
the adult you’re applying to get a litigation friend appointed for
Certificate of service
When you’ve served the certificate of suitability, download and fill in the relevant certificate of service for a:
Court of Protection case depending on whether you’re serving the other person or someone else
Deliver or send the certificate of suitability and certificate of service to the court at the same time.
2.) Apply to the court of protection to become the persons deptuty
Apply to be a deputy
You need to download and fill in:
an information form (COP1A) if you’re applying to be a property and affairs deputy
an information form (COP1B) if you’re applying to be a personal welfare deputy
You must name at least 3 people in your application who know the person you’re applying to be deputy for. For example, their relatives, a social worker or doctor.
The court may not accept your application if you do not send the ‘assessment of capacity’ (COP3) form.
If you cannot get an assessment, you must download and fill in a witness statement (COP24) to explain why you think the person you’re applying about lacks capacity.
You should keep a copy of every form you fill in.
Where to send your forms
Send the originals to the Court of Protection with:
2 copies of your application form
1 copy of the other forms
a cheque for the application fee
Court of Protection
PO Box 70185
First Avenue House
42-49 High Holborn
London
WC1A 9JA
Tell people named in your application
The court will aim to send you a stamped copy of your application within a week of receiving it. This means your application is being considered (it has been ‘issued’). You’ll be sent a letter explaining what to do next.
Within 14 days of the application being issued, you must tell (sometimes called ‘serving’) the following people:
the person you’re applying to be a deputy for
at least 3 people named in your application as having an interest, for example the person’s relatives, social worker or doctor
If you cannot tell 3 people you should send in form cop24.
Tell the person you’re applying to be a deputy for
You or your representative must visit the person and tell them:
who’s applying to be their deputy
that their ability to make decisions is being questioned
what having a deputy would mean for them
where to get advice if they want to discuss the application
During the visit give them:
a completed form COP14 - use the guidance notes to fill this in yourself
an acknowledgment form (COP5) for them to confirm they’ve understood this
any other documents related to your application
Tell people connected to your application
You must tell 3 people named on your application that it has been issued.
Send them:
an acknowledgment form (COP5) for them to confirm they’ve understood this
any other documents related to your application
You can tell them:
by post to their home address
by fax or email
in person
Confirming that you’ve told people (‘served notice’)
Within 7 days of serving the documents, you must download and fill in the relevant forms (sometimes called ‘certificates of service’) confirming you’ve told:
Send them all together to the Court of Protection - the address is on the forms.
Liberty Protection Safeguards (LPS)
Latest developments
In July 2018, the Government published a Mental Capacity (Amendment) Bill, which if passed into law will reform the Deprivation of Liberty Safeguards (DoLS), and replace them with a scheme known as the Liberty Protection Safeguards (although the term is not used in the Bill itself).
The Bill draws heavily on the Law Commission’s proposals for reforming DoLS, but generally does not address some of the wider MCA reforms that the Law Commission suggested. So proposed reforms around supported decision-making and best interests are not included, although the omissions have proved controversial, will be challenged as the Bill goes through Parliament.
Key features of the Liberty Protection Safeguards (LPS) include:
Like DoLS (but contrary to the Law Commission’s suggestion) they start at 18. There is no statutory definition of a deprivation of liberty beyond that in the Cheshire West and Surrey Supreme Court judgement of March 2014 – the acid test.
Deprivations of liberty have to be authorised in advance by the ‘responsible body’
For hospitals, be they NHS or private, the responsible body will be the ‘hospital manager’.
For arrangements under Continuing Health Care outside a hospital, the responsible body will be the local CCG (or Health Board in Wales).
In all other cases – such as in care homes, supported living schemes (including for self-funders), the responsible body will be the local authority.
For the responsible body to authorise any deprivation of liberty, it needs to be clear that:
The person lacks the capacity to consent to the care arrangements
The person is of unsound mind
The arrangements are necessary and proportionate.
To determine this, the responsible body must consult with the person and others, to understand what the person’s wishes and feelings about the arrangements are.
An individual from the responsible body, but not someone directly involved in the care and support of the person subject to the care arrangements, must conclude if the arrangements meet the three criteria above (lack of capacity; unsound mind; necessity and proportionality).
Where it is clear, or reasonably suspected, that the person objects to the care arrangements, then a more thorough review of the case must be carried out by an Approved Mental Capacity Professional.
Where there is a potential deprivation of liberty in a care home, the Bill suggests the care home managers should lead on the assessments of capacity, and the judgment of necessity and proportionality, and pass their findings to the local authority as the responsible body. This aspect of the Bill has generated some negative comment, with people feeling that there is insufficient independent scrutiny of the proposed care arrangements.
Safeguards once a deprivation is authorised include regular reviews by the responsible body and the right to an appropriate person or an IMCA to represent a person and protect their interests.
As under DoLS, a deprivation can be for a maximum of one year initially. Under LPS, this can be renewed initially for one year, but subsequent to that for up to three years.
Again, as under DoLS, the Court of Protection will oversee any disputes or appeals.
The new Bill also broadens the scope to treat people, and deprive them of their liberty, in a medical emergency, without gaining prior authorisation.
It remains unclear when the Bill may pass into law, and then when it may be implemented.
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