The Mental Capacity Act and Deprivation of Liberty Safeguards - The Neary Judgment - Ben Troke -...
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Neary v Hillingdon • background • judgment • implications & lessons • conclusions & questions
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Transcript of The Mental Capacity Act and Deprivation of Liberty Safeguards - The Neary Judgment - Ben Troke -...
Neary v Hillingdon
• background
• judgment
• implications & lessons
• conclusions & questions
HBC p
rovid
ing
fam
ily s
upport
Ste
ven w
ent
into
resp
ite c
are
Urg
ent
DO
LS a
uth
ori
sati
on
4 x
sta
ndard
DO
LS
auth
ori
sati
ons
HBC iss
ue C
oP
pro
ceedin
gs
IMCA involv
ed
Judgm
ent
= S
teven
retu
rned h
om
e
Judgm
ent
= lif
t
report
ing r
est
ricti
ons
Steven was deprived of liberty
LA must refer disputes to court
DOLS did not provide lawful
authority
Steven should have been
at home
“key features are Steven’s objection to
being at the support unit, the objection of
his father, and the total and effective
control of Steven’s every waking moment in
a environment that was not his home”
everyone has the right to respect for his
private and family life …
there shall be no interference by a public
authority … except in accordance with the
law and … necessary in a democratic
society …
“starting point should be the normal assumption that [P]
will be better off in a family than in an institution” …
“and we should not lightly interfere with family life”.
“the burden is always on the state to show that P’s welfare
cannot be sustained by living with and being looked after
by his or her family, with or without our help”.
“significant welfare issues that cannot be
resolved by discussion should be placed before
the court … DOLS is not to be used by a LA as a
means of getting its own way on the question
of whether it is in the person’s best interests
to be in the place at all” Mr Justice Peter Jackson
“the fact that an individual does not
bring the matter to court does not
relieve the local authority of the obligation
to act, it redoubles it”
no record that Steven
wanted to go home
no thought to
alternatives
no consideration of
referral to court
“cursory” discussion
with Mr Neary “a document done in a hurry”
no record of
Mr Neary’s request
• 50 (1) The supervisory body must give a standard authorisation if:
- (a) all assessments are positive, and
- (b) the supervisory body have written
copies of all those assessments
“supervisory body
must actively supervise”
“should never be a rubber
stamping exercise…”.
“Insufficient scrutiny of inadequate
information” will not lead to a lawful
authorisation
separate roles carefully
involvement of family
application to court
approach must be collaborative
Who is the
decision maker?
court is a “place to share responsibility
for risk taking”
Who is the
decision maker?
real family dispute
not sure it’s a DOL
not sure DOL is in best
interest
if everyone agrees there’s a
DOL and it’s in best interest
http://www.thetimes.co.uk/tto/news/uk/articl
e3057592.ece
http://www.independent.co.uk/new
s/uk/home-news/bra-fathers-right-
to-love-2295560.html
http://www.independent.co.uk/new
s/uk/home-news/locking-autistic-
man-in-padded-room-ruled-illegal-
2298553.html
• Cheshire West & Chester Council
v P (14.6.2011)
• C v A local authority (17.6.2011)
- communication with family
- criticism of failure to go to
court sooner
• www.mentalhealthlaw.co.uk
• http://www.bailii.org
• www.communities.idea.gov.uk/welcome.do
• www.law-less-ordinary.com
• www.brownejacobson.com
