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Family Law

The leading authority on all aspects of family law

16 MAY 2008

LOCAL AUTHORITY: Re GJ, NJ and BJ (Incapacitated Adults) [2008] EWHC 1097 (Fam)

(Family Division; Munby J; 16 May 2008)

Considering appropriate safeguards in relation to depriving an incapacitated adult of liberty under the inherent jurisdiction, the court noted that the amendments to the Mental Capacity Act 2005 enacted by the Mental Health Act 2007, the new statutory scheme designed to close the Bournewood gap (Bournewood Community and Mental Health NHS Trust, ex p L [1999] 1 AC 458), were not yet in force. In relation to interim reviews by the court: as a general practice the first review hearing should follow no later than 4 weeks after the initial order, but if a litigation friend had not been involved the initial review by the court would have to be much sooner; it was vital that the litigation friend participated fully in all further interim hearings; the parties and the incapacitated adult should always have liberty to apply, if need be on the shortest reasonable notice; it was then the duty of the court to ensure that the listing of the case as a matter of urgency. The local authority should also hold regular internal reviews; it was vital that the authority set out as early as possible the dates on which those internal reviews were to be held, that the authority invited a representative of the litigation friend to attend, and that the authority provided that representative with up to date information on all matters relevant to the deprivation of the person's liberty. After the final hearing there should be provision for regular court reviews: until the amendments to the 2005 Act were in force, the litigation friend remained as much a part of the post-order court review process as the local authority; normally it would be appropriate for the first annual review to be an oral hearing, but if at that stage the position had stabilised and change was unlikely within the year, the next and subsequent reviews could probably take place without an oral hearing; so far as reasonably practicable, every case in which a final order had been made authorising a person's deprivation of liberty should be reserved to the judge who made that order; the fact that the case was so reserved should be recorded in the order. Between these court reviews regular internal reviews were to take place, considering both capacity and best interests; the practice of holding these once every 8 to 10 weeks was commended; at such reviews the interests of the person who had been deprived of his liberty must be represented by an independent person; proper minutes must be kept of both the discussions and the conclusions reached at each internal review and all reports and other materials received at each review must be retained.

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