The website is run by a practising solicitor, Jonathan Wilson. It includes links to the full text of the relevant primary and secondary legislation, as well as a searchable and comprehensive database of cases from all levels of tribunals and courts in which the Mental Health Act 1983 and/or the Mental Capacity Act 2005 have been considered.

The Committee’s key finding in this evidence-led inquiry is that the Mental Capacity Act 2005 is not widely implemented. To address this, the Committee recommends that responsibility for implementing the Act be given to an independent body. The Committee’s second key finding is that the Deprivation of Liberty Safeguards are not fit for purpose. The Committee recommends that they be replaced with new provisions. This report considers: whether the Act is working as intended in respect of the Act’s five core principles; how to address poor implementation of the Act; advocacy and advance planning; whether the Court of Protection is appropriate (or should there be a Mental Capacity Tribunal instead); and criminal law provisions under Section 44 of the Act. It summarises and refers to cases of unlawful detention under the Act (Steven Neary), and the deprivation of liberty of an autistic man with a profound learning disability, HL at Bournewood Hospital for 32 years. It includes as a good practice example, the work by Jim Blair, a learning disability nurse consultant who explained adjustments made for effective treatment and outcomes for adults with learning disabilities appropriate to their needs. The Committee makes recommendations to Government to: work with regulators and professional bodies to ensure the Act is given a higher profile in training, standard setting and inspections; increase staff resources at the Court of Protection to speed up handling of non-controversial cases; and reconsider the provision of non-means tested legal aid to those who lack capacity, especially in cases of deprivation of liberty. Local authorities should use their discretionary powers to appoint Independent Mental Capacity Advocates more widely than is currently the case. The Government should act on the poor levels of awareness and understanding of Lasting Powers of Attorney and advance decisions to refuse treatment among professionals in the health and social care sectors. The Government should also review the criminal law provision for ill-treatment or neglect of a person lacking capacity, to ensure that the Act is fit for purpose. The Committee recommends that the House of Lords seek an update from the Government twelve months from now to find out what they have done in response to their key recommendations. An easy read version is also available.

This Act amends the Mental Capacity Act 2005 in relation to procedures with which a person may be deprived of liberty where the person lacks capacity to consent. It includes amendments of authorising of arrangements enabling care and treatment which give rise to a deprivation of liberty; and Section 42 of the Mental Capacity Act 2005 code of practice in relation to Deprivation of liberty. The legislation provides for the repeal of the Deprivation of Liberty Safeguards (DoLS) and their replacement with a new scheme called the Liberty Protection Safeguards (LPS).

A discussion and Q&A webinar on the introduction of the Liberty Protection Safeguards (LPS).

This presentation explores the difference between Lasting Power of Attorney, Enduring Power of Attorney and a Court Protection Order, when to use them, and the process to obtain the relevant legal documents.

Letter sent to Mental Capacity Act 2005 (MCA) – Deprivation of Liberty Safeguards (DoLS) leads in local authorities and the NHS on 22 October 2015. The letter update on developments on the Deprivation of Liberty Safeguards (DoLS) and also on developments concerning the wider Mental Capacity Act 2005 (MCA).
The document includes the Department of Health Guidance in response to the Supreme Court Judgment/ Deprivation of Liberty Safeguards (19 March 2014 in the case of Cheshire West).

The court in Re NRA was faced with the need to devise a system which was compliant with Article 5 ECHR (deprivation of liberty) but not so onerous that it diverted resources away from frontline services, caused unnecessary interference in the lives of P and those who care for P, or resulted in excessive delay.

PJ was a man on a Community Treatment Order (CTO) which required him to live at a care home and abide by the regime there. PJ sought discharge of the CTO on the basis that the arrangements for his care amounted to an unlawful deprivation of liberty in breach of Article 5. The Mental Health Review Tribunal (MHRT) refused the application holding that PJ was not deprived of his liberty. In the Upper Tribunal, Charles J emphasised the different elements of the test for deprivation of liberty. He held that the MHRT had erred in law: (1) in its approach to the assessment of the degree of supervision and control required; and (2) by divorcing that consideration from the freedom of PJ to leave. The MHRT had overlooked, and failed to take into account, the guidance given in Cheshire West that the reason or purpose of the relevant conditions was not relevant to the assessment of whether the objective element of a deprivation of liberty was satisfied.

This case concerns deprivation of liberty authorisation and the role of supervisory body. P was 26 years old with severe learning disability and autistic spectrum disorder. His placement broke down and he was urgently moved into a care home on 5 September 2014. On 24 November 2014 an urgent authorisation was issued by the care home and on 23 December 2014, a standard authorisation was granted by Surrey County Council, expiring on 18 October 2015. His mother, acting as relevant person’s representative and litigation friend, successfully challenged the authorisation and the court declared that it was in P’s best interests to move to a new placement after a period of transition. The court held that P had been unlawfully deprived of liberty prior to the urgent authorisation and between its expiry and the commencement of the standard authorisation. HHJ Cushing was very critical of the supervisory body for making an authorisation that ran for too long (80% of the maximum term) in circumstances where it was clear that the care home where he was deprived of his liberty was only suitable in the short term.

Five test cases involving elderly people (RD, JB, JP, EP and JW) who suffered from a form of dementia were identified to enable the court to consider the question of when an application should be made to court under section 21A MCA. All five individuals were being deprived of their liberty in a care home or hospital setting under a DOLS authorisation. The court gave general guidance as to the approach that should be adopted by RPRs and IMCAs in deciding whether to issue proceedings under s.21A.

This case relates to deprivation of liberty procedure. In Re X and others (Deprivation of Liberty) [2014] EWCOP 25 (and No 2 [2014] EWCOP 37), Sir James Munby, the President of the Court of Protection sought to devise a streamlined process to seek to enable the court to deal with DoL cases in a timely, just, fair and ECHR-compatible way. The Court of Appeal has now held that Sir James Munby P had not been entitled to proceed in the fashion that he did, and that his ‘judgments’ were in fact not authoritative statements of the law.

This case concerns leave under Section 17 MHA 1983 and DoLS. AB, a 34 year old woman, had a serious and life threatening cardiac condition, the recommended treatment for which was surgery. She lacked the capacity to make decisions as to her medical treatment (and to conduct proceedings in relation to her medical treatment). The local health board made an application to the Court of Protection for declarations and decisions in relation to AB’s capacity and best interests as regards heart surgery, as well as (prior) dental surgery to remove her lower teeth. The intention was that AB would be granted leave under s.17 MHA 1983 by her Responsible Clinician to attend at the general hospital for purposes of undergoing both treatments. Both before and during the planned procedures, AB would be subject to restraints amounting to a deprivation of her liberty. Decision Recognising that AB was at risk of dying, the court decided that it was in AB’s best interests to undergo both procedures for heart surgery and dental surgery. However, the Court of Protection could not exercise its powers to as so authorise the deprivation of her liberty. It was therefore necessary for the court to authorise AB’s deprivation of liberty at the general hospital under the inherent jurisdiction of the High Court.