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Family Law

The leading authority on all aspects of family law

06 FEB 2013

DEPRIVATION OF LIBERTY: CC v KK and STCC [2012] EWHC 2136, (COP) [2012] COPLR 627

(Court of Protection, Baker J, 26 July 2012)

The 82-year-old woman was being well cared for in a nursing home but wished to return to her own home. She had been paralysed down one side since childhood and had recently developed Parkinson's Disease and vascular dementia. She now required a wheelchair or a hoist to get her mobilised.

Following an assessment by a doctor standard authorisation under the Deprivation of Liberty Safeguard regime was granted. The woman challenged that decision but a further assessment concluded that the woman did not have capacity to determine her care needs and residence. A hearing was held to decide whether the woman lacked capacity to make decisions regarding her care and residence and whether she had been or was being deprived of her liberty.

Despite the fact that there was a consensus between the professionals that the woman lacked capacity it was the court alone that had the opportunity to weigh all the evidence and make a determination. The court had to recongise that different individuals may give weight to different factors. So although the woman was thought to minimise some of her needs she did not do so to the extent that she lacked capacity to weigh up information.

The court found that the woman had not been presented with the full details of the care package on offer should she return home. While the woman lacked capacity to weigh up every nuance of the plan she understood the salient features and the local authority had failed to prove that she lacked capacity to determine her residence.

In the circumstances of this case the three conditions of a deprivation of liberty set out in the case law were not met and the woman's placement did not objectively amount to a deprivation of liberty.

 

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