Legal Aid is available for Court of Protection matters

The Court of Protection Team at Campbell-Taylor has an excellent reputation in Court of Protection work. Our lawyers are highly regarded for their depth of knowledge and breadth of experience.

Our expert solicitors deal with every type of Court of Protection matter, ranging from welfare disputes over residence and contact, including Deprivation of Liberty safeguards [DoLS] to issues of medical and life-sustaining treatment. We also act in relation to all financial deputyship matters.

Our team also practices across the whole spectrum of mental health law so we have specialised experience in relation to mental disorders and other issues, which might affect someone’s capacity. We are exceptionally well placed to advise on the interface between the Mental Health Act and Mental Capacity Act.

Some of our notable cases:

LB Haringey v CM [2014] EWCOP B23.  This case concerned the objection by a family member to the appointment of a local authority as property and affairs deputy. It was the first time in which the General Comment on Article 12 to the Convention on the Rights of Persons with Disabilities (‘CRPD’) has been used in a judgement. http://www.bailii.org/ew/cases/EWCOP/2014/B23.html

Re G (Adult) (Associated Newspapers Limited intervening) [2014] EWCOP 1361. Involving Article 8 (Right to private life) and Article 10 (Freedom of Expression and Information) of the European Convention on Human Rights.Sir James Mumby, President of the Court of Protection, ruled that that Daily Mail has no standing to be joined as a party in welfare proceedings in relation to a vulnerable who has been declared by the courts as lacking capacity under the Mental Capacity Act. http://www.bailii.org/ew/cases/EWCOP/2014/1361.html

PB v RB and a local authority [2012] EWHC 4159 (COP). This decision deals with a fact finding hearing. The Local Authority sought to prove 13 alleged facts. Judgement highlights the need to ensure that that evidence to be relied upon in such hearings needs to be of a high quality. http://www.bailii.org/ew/cases/EWCOP/2012/4159.html

LBL v RYJ and VJ [2010] EWHC 2665 (COP). Macur J decided that RYJ had capacity to make decisions as to her day-to-day life and made it clear that the inherent jurisdiction should be used to secure unencumbered decision-making only and should not be used to make decisions on behalf of vulnerable capacitated adults. http://www.bailii.org/ew/cases/EWCOP/2010/2665.html

LBH v GP and MP Coleridge J, 8 April 2009 [2010] 13 CCLR 171. A young man with learning disabilities and lacking capacity was moved by the local authority from his home with his mother, to a care home, pursuant to a court order authorising the move. Police arrived in riot gear in the early hours of the morning and the person lacking capacity was removed in handcuffs. The court gave guidance on how the parties and the courts should deal in future with cases where the police were to be involved in the removal of a person lacking capacity.

To discuss your options please do not hesitate to contact our Court of Protection and Deputyship Team on 0207 923 9583 or email mail@rhctlegal.co.uk.

Frequently Asked Questions

The Mental Capacity Act 2005 (The Act)

The provisions of the Act came into force in 2007 and replaced the previous powers under the Mental Health Act.

What is the Court of Protection?

The Mental Capacity Act 2005 protects anyone who lacks capacity to make decisions for themselves. Under the Act, the Court of Protection decides what is in the best interests of someone who cannot make decisions for themselves about issues including -

  • whether they have capacity to make decisions for themselves
  • where they live
  • what type of contact they should have with their family and others
  • medical treatment
  • whether they can manage their own finances and affairs

 

What is meant by lack of capacity?

A person’s capacity refers specifically to their ability to make a particular decision at the time it needs to be made. Capacity is issue specific. This means that someone might have capacity to decide who they have contact with but not have capacity to decide where they should live.

What are the guiding principles of the Mental Capacity Act 2005?

The Act provides for a presumption of capacity. A person must be presumed to have capacity unless there is cogent evidence, which establishes that they do not. A person must not be assumed to lack capacity because they seek to make an unwise decision.   A person is only treated as unable to make a decision for themselves if he is unable -

  • to understand the information relevant to the decision,
  • to retain the information,
  • to use or weigh that information as part of the process of making the decision or
  • to communicate their decision.

The Act has an ethos of empowerment and personal autonomy, and the key obligation on professionals is to support and maximise the decision-making capacity of the person who lacks capacity. In the event, the person lacks capacity, his/her past and present wishes and feelings must be taken into account.

Any decision taken must be in the person’s best interests and represent the least restrictive option.

I do not think my relative lacks capacity, what can I do?

We can obtain an independent medical examination of your relative’s capacity. If the matter is already before the Court of Protection, we can ask the court to order an independent medical report on their capacity. Capacity is the cornerstone of proceedings in the Court of Protection; therefore, the evidence that the person lacks capacity must be cogent and robust.

My relative is subject to a Deprivation of Liberty Safeguard and is being detained in a care home. I want her to come home. What can I do?

An adult who has been placed in a care home or hospital who is not free to leave and who is not detained under the Mental Health Act and who lacks the capacity to decide whether s/he wishes to stay there should be protected by the Deprivation of Liberty Safeguards [DoLS]. These safeguards require that any deprivation of liberty must be in the best interests of the person who lacks capacity and must be the least restrictive option to protect them and others from harm.

If your relative is being deprived of their liberty under a DoLS and you wish to challenge it, we would make an urgent application to the Court of Protection to hear the matter.

What is a deputy?

The Court of Protection can appoint a deputy to make decisions on behalf of someone who lacks capacity. A deputy can be appointed in respect of someone’s property & affairs or health & welfare decisions, although it is much less common for the court to appoint a deputy in respect of health & welfare and an application can only be made if there are live welfare issues.

How do I become a deputy for my relative?

We can make an application to the Court of Protection for you to become a deputy for your friend or relative. Any application will need to be supported by a medical professional who confirms that the relevant person is lacking capacity and would benefit from the appointment of a deputy.

Am I eligible for legal aid?

We have a legal aid contract to represent clients in the Court of Protection. If you wish to discuss whether you would be eligible for legal aid please do not hesitate to contact our Court of Protection and Deputyship Team on 0207 923 9583 or email mail@rhctlegal.co.uk.