What is the Court of Protection?
The Court of Protection is a specialist Court which makes decisions for people who lack the mental capacity.
A lack of capacity may arise from an individual’s mental ill health, dementia, serious brain injury or other disability.
The court may make decisions relating to:
- managing someone’s benefits
- consent to medical treatment
- sexual relations
- accommodation needs
- Deprivation of Liberty Safeguards (DoLS).
Who can make decisions for someone who lacks capacity?
This depends on whether any arrangements were put in place before the person lost mental capacity.
- If they appointed a Lasting Power of Attorney before they lost capacity, then their affairs will be managed by their appointed Attorney.
- a friend or relative can apply to the Court of Protection to become a Court of Protection Deputy.
Who can become a Court of Protection Deputy?
- Anyone aged over 18 can apply to be someone’s Court of Protection Deputy.
- Deputies are usually the friends or relatives of the person that has lost capacity
- The Court can appoint a Panel Deputy.
A Panel Deputy is someone pre-approved by the Court to act on behalf of people that don’t have the mental capacity to make important decisions for themselves.
How to apply to the Court of Protection
- To make an application you must complete forms that confirm to the Court that the person is no longer able to make decisions for themselves.
- you will need to consider exactly what powers you will need and which decisions you believe you should be responsible for.
Our solicitors can guide you through the complex procedures and paperwork when making an application to the Court of Protection, and advise you on the best course of action.
If your application is successful, the Court will grant you a court order, which outlines your powers and responsibilities.
Deprivation of Liberty Safeguards (DoLS)
A Deprivation of Liberty is when an adult who lacks mental capacity is under continuous supervision and control and is not free to leave their care environment.
- This could be at a hospital, care home or in a community-based placement and possibly even in a care at home package.
- A Depreivation of Liberty may be a vital measure to keep the individual safe, but it must be properly authorised in order to be lawful.
- The authorising, or ‘supervisory’ body, needs to examine whether there is a less restrictive way to provide the individual’s care, which does not unnecessarily restrict their freedom or deprive them of their liberty.
- If the individual is in a care home or hospital, the proposed deprivation of liberty must authorised by Local Authority or the NHS.
- If the individual is receiving their care in another setting, the proposed deprivation of liberty must be authorised by the Court of Protection.
Deprivation of Liberty Safeguards (DoLS) are part of the framework introduced by the Mental Capacity Act 2005 (MCA). The safeguards exist to ensure that the restrictions which have been put in place are necessary, appropriate and proportionate.
How to challenge a Deprivation of Liberty Safeguard
The nature of the challenge will depend upon what has gone wrong with the Deprivation of Liberty Safeguard process and why the arrangements are not appropriate.
It may be possible to obtain the right outcome at a local level, for example by
- Asking the supervisory body to carry out a review or through discussions at a Best Interest Meeting.
- This can help in a dispute about whether your relative should live at home or in a care home; or in a dispute about contact and visiting.
In other cases, a deprivation of liberty dispute can only be resolved by the Court of Protection.
- The Court can overturn or vary decisions that have been made at local level.
Our team will ensure that:
- your vulnerable or incapacitated relative is properly protected by the law.
- assist you in advancing persuasive arguments to the Local Authority, the NHS or to the Court of Protection
- your relative’s best interests and human rights are at the centre of every decision about the care, support and treatment that they receive.
Non-means tested legal aid is available to persons seeking to challenge DoLS before the Court of Protection.
Our Team in the Mental Health & Capacity Department at Cardiff is led by Sarah Griffiths-Jones. Should you require such advice or assistance, please do not hesitate to contact us on 02921 679 733, or through our contact form.
For Mental Health & Capacity matters in England, please contact Kate Tyrrell. Should you require any advice or assistance, please do not hesitate to contact 01452 221 473, or through our contact form.