Law and Rights
Stephen Neary is aged 20. He is autistic. He lived with his father (Michael) until his father had a serious bout of influenza and was temporarily unable to care for him. Michael arranged for Stephen to be cared for at a local authority run respite centre for just 3 days. Stephen had been there before. The respite centre decided to transfer Stephen to a "Positive Behaviour Unit" alleging that he had committed assaults whilst at the respite centre. The Unit decided to deprive Stephen of his liberty so that he could be "assessed." He has been held for almost a year and it is argued that he is not suitable to return home. It now appears that the local authority has applied to the Court of Protection for "Welfare Deputyship."
There is a complex legal history to detention of persons who lack capacity. At this stage, Law and Lawyers wishes to draw attention to the case which appears to be extremely unsatisfactory. The present law on the matter is almost unbelievably convoluted.
More about Stephen's case may be read at the Anna Raccoon blog and Law and Lawyers (L & L) urges all readers to consider what is written there. There is also a petition. See "The Orwellian Present - Never mind the Future." L and L is grateful to the excellent CharonQC blog for highlighting this problematic case.
A "Deprivation of Liberty" decision can be challenged in the Court of Protection. Please see the legal material below for more information on this process. Under Court of Protection Rules (issued in 2007) hearings are normally in private (Rule 90) but can be public in some circumstances (Rules 92 and 93). Persons wishing to issue such a challenge should first seek expert legal advice. Funding may be available for legal help and legal representation could be applied for in some deprivation of liberty cases. It is not expected that this area will be unduly altered by the Ministry of Justice's recent legal aid proposals - see paras. 4.92 to 4.94 here.
Some Legal Materials:
Mental Capacity Act 2005 Care Quality Commission - Mental Capacity Act and Deprivation of Liberty
Mental Health Act 2007 - which amended the 2005 Act in the light of the European Court of Human Rights judgment in HL v UK 2004.
Department of Health 2010 - Deprivation of Liberty Safeguards
Court of Protection Rules 2007
Court of Protection - HMCS website - link to Practice Direction on Deprivation of Liberty Applications under the Mental Capacity Act 2005 s21A.
Mental Health Law Online
Legal Services Commission - Legal Help and Legal Representation - Guidance
The Court of Protection:
Further information about the court is on the Public Guardian website. The Court issued a report covering the first 2 years of its existence - here. There has been trenchant criticism of the court and its processes - see, for example, Family Law article by barrister Moira Sofaer.
Information about autism:
National Autistic Society
Autism Independent UK
Addendum 12th December: Law and Lawyers is grateful for the comment about this post on the Jack of Kent Blog. Please see - "Bad Law, or there can be two sides to a story" - Jack of Kent Blog - 11th December. In all legal matters there are always two sides (maybe more) to any situation and the law and lawyers have to adopt as objective a stance as possible. This why the post above merely sought to draw attention to the case which certainly appears to be extremely unsatisfactory.
- Deprivation Of Liberty ~ Coroner's Inquests And Other Matters
Deprivation of Liberty Safeguards continue to raise problems. The law is to be found in the Mental Capacity Act 2005 Schedule A1 (Hospital and Care Home Residents: Deprivation of Liberty). Age UK publish a useful factsheet. Increased...
- Why We Need Our Human Rights (3) - Mental Health
The Convention has had a profound impact upon the way in which those with mental health problems are treated and cared for. However, this is an important and difficult area where there continues to be room for considerable improvement. ...
- Domestic Law And The European Convention On Human Rights - No. 4
This is the fourth post in a short series aimed at showing how the European Convention on Human Rights (E Conv HR) and the Human Rights Act 1998 (HRA) have made significant and beneficial changes to our domestic law. The earlier posts in the series...
- Liberty: Deprivation Or Restraint?
The Trinity Law term ran from 7th June to 29th July and produced some important decisions. The Michaelmas Law Term does not start until 3rd October so the senior courts will be relatively quiescent until then. This provides an opportunity...
- Deprivation Of Liberty Safeguards
Peter Jackson J - sitting in the Court of Protection - has held that, in the context of Steven Neary's case, certain media outlets may be represented at hearings - see London Borough of Hillingdon v Steven Neary and Mark Neary [2011] EWHC 413 (COP). ...
Law and Rights
Deprivation of Liberty: the worrying case of Stephen Neary
There is a complex legal history to detention of persons who lack capacity. At this stage, Law and Lawyers wishes to draw attention to the case which appears to be extremely unsatisfactory. The present law on the matter is almost unbelievably convoluted.
More about Stephen's case may be read at the Anna Raccoon blog and Law and Lawyers (L & L) urges all readers to consider what is written there. There is also a petition. See "The Orwellian Present - Never mind the Future." L and L is grateful to the excellent CharonQC blog for highlighting this problematic case.
A "Deprivation of Liberty" decision can be challenged in the Court of Protection. Please see the legal material below for more information on this process. Under Court of Protection Rules (issued in 2007) hearings are normally in private (Rule 90) but can be public in some circumstances (Rules 92 and 93). Persons wishing to issue such a challenge should first seek expert legal advice. Funding may be available for legal help and legal representation could be applied for in some deprivation of liberty cases. It is not expected that this area will be unduly altered by the Ministry of Justice's recent legal aid proposals - see paras. 4.92 to 4.94 here.
Some Legal Materials:
Mental Capacity Act 2005 Care Quality Commission - Mental Capacity Act and Deprivation of Liberty
Mental Health Act 2007 - which amended the 2005 Act in the light of the European Court of Human Rights judgment in HL v UK 2004.
Department of Health 2010 - Deprivation of Liberty Safeguards
Court of Protection Rules 2007
Court of Protection - HMCS website - link to Practice Direction on Deprivation of Liberty Applications under the Mental Capacity Act 2005 s21A.
Mental Health Law Online
Legal Services Commission - Legal Help and Legal Representation - Guidance
The Court of Protection:
Further information about the court is on the Public Guardian website. The Court issued a report covering the first 2 years of its existence - here. There has been trenchant criticism of the court and its processes - see, for example, Family Law article by barrister Moira Sofaer.
Information about autism:
National Autistic Society
Autism Independent UK
Addendum 12th December: Law and Lawyers is grateful for the comment about this post on the Jack of Kent Blog. Please see - "Bad Law, or there can be two sides to a story" - Jack of Kent Blog - 11th December. In all legal matters there are always two sides (maybe more) to any situation and the law and lawyers have to adopt as objective a stance as possible. This why the post above merely sought to draw attention to the case which certainly appears to be extremely unsatisfactory.
- Deprivation Of Liberty ~ Coroner's Inquests And Other Matters
Deprivation of Liberty Safeguards continue to raise problems. The law is to be found in the Mental Capacity Act 2005 Schedule A1 (Hospital and Care Home Residents: Deprivation of Liberty). Age UK publish a useful factsheet. Increased...
- Why We Need Our Human Rights (3) - Mental Health
The Convention has had a profound impact upon the way in which those with mental health problems are treated and cared for. However, this is an important and difficult area where there continues to be room for considerable improvement. ...
- Domestic Law And The European Convention On Human Rights - No. 4
This is the fourth post in a short series aimed at showing how the European Convention on Human Rights (E Conv HR) and the Human Rights Act 1998 (HRA) have made significant and beneficial changes to our domestic law. The earlier posts in the series...
- Liberty: Deprivation Or Restraint?
The Trinity Law term ran from 7th June to 29th July and produced some important decisions. The Michaelmas Law Term does not start until 3rd October so the senior courts will be relatively quiescent until then. This provides an opportunity...
- Deprivation Of Liberty Safeguards
Peter Jackson J - sitting in the Court of Protection - has held that, in the context of Steven Neary's case, certain media outlets may be represented at hearings - see London Borough of Hillingdon v Steven Neary and Mark Neary [2011] EWHC 413 (COP). ...