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Family Law

The leading authority on all aspects of family law

18 JUN 2012

The Deprivation of Liberty Safeguards Part 5: general jurisdiction and role of the Court of Protection

Her Honour Nasreen Pearce
Retired Circuit Judge

District Judge Sue Jackson
Nominated Judge of the Court of Protection

The articles entitled 'The Deprivation of Liberty Safeguards' are a series on the Deprivation of Liberty provisions which apply to those who lack capacity (P). They are aimed at introducing those who are unfamiliar or struggle with the complex provisions on this subject which are set out in the Mental Capacity Act 2005 (MCA 2005) as amended and its interface with those which apply under the Mental Health Act 1983 (MHA 1983), the Court of Protection Rules and the two Codes of Practice. Whilst the statutory provisions appear to be straightforward, 'the environment in which local authorities operate in the field of adult care is not legally coherent and bristles with intricate regulation' (per Jackson J in London Borough of Hillingdon v Steven Neary (by the Official Solicitor) and Others [2011] EWHC 1377 (COP), [2012] 1 FLR 72, [2011] COPLR Con Vol 632). The articles provide an outline of the historical background with reference to the decisions of the ECtHR, the main principles, how they work in practice, the regime which has to be followed by those who have the task of making internal administrative decisions to authorise deprivation of P's liberty, the rights of P, his relative and representatives to challenge those decisions and the role of the Court of Protection and an analysis of recent decisions of the court.

To read the rest of this article, see July [2012] Family Law journal.

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