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Court of protection article

This article in The Independent looks at some of the problems with the Deprivation of Liberty Safeguards. The systemic problems with this process are exacerbated by the Cheshire West decision in the court of appeal. Sam Smith, Lucy Series and Anna Raccoon (not her real name) have written some useful pieces about this. We are closer still to publishing the draft Family Justice Bill.


Lucy Series said…
I'm not sure what happened to my previous comment, so I'll try again.

I - along with many people working with the DoLS - share John Hemmings concerns that the DoLS do not provide robust Article 5 safeguards against arbitrary detention. I agree that part of the problem is that supervisory bodies are not always as independent as might be desired, given that often they have both commissioned the care that amounts to detention and are then asked to scrutinise those decisions. However, there are many elements of Hemming's analysis I find perplexing.

The article implies that a rise in the number of DoLS applications is something to be concerned about - when in fact the inverse is true. The reality is that involuntary placement which amounts to detention often happens without any legal safeguards at all. A rise in the number of DoLS applications means that more people are recognising detention when it is occurring, and people are getting some protection (albeit imperfect). The much, much, more concerning thing is that the number of applications began to tail off earlier this year, quite possibly in response to the Cheshire ruling which gave managing authorities and supervisory bodies much more scope to decline to recognise that a person is detained.

Hemming also complains that 'The Court of Protection suffers from the over judicialisation of what is essentially a therapeutic decision'. I'm not sure why this is a therapeutic decision? Certainly hospital treatment might be, but placement in a care home is a complex issue involving many social, not merely medical, considerations.

Some, like Hemming, have complained that the CoP over-scrutinises welfare cases and prefer a mental health tribunal style system. But they haven't demonstrated that such a system could work, and wouldn't also get bogged down in complex issues around safeguarding, mental capacity, best interests.

Neither does Hemming raise one of the most significant problems with the DoLS - which is the worryingly low number with result in appeals. The biggest problem isn't too much judicial scrutiny but too little - hardly any cases end up in court.

And the complaint that the COP is too secretive followed by a preference for a mental health tribunal style system is a strange one. How many MH tribunals are held in public, as Hemming would prefer? I will refer him to this statistic from the pages of this newspaper:
'Of the more than 100,000 mental health tribunals conducted over the past seven years there were just 10 applications for an open hearing. Only one application was previously granted and it was withdrawn, meaning Mr Haines will be the first.'
John Hemming said…
Therapeutic in terms of maintaining health is basically a decision as to what is best for the person concerned. This is not a decision as to the legal parameters and not suited to a court hearing. It is best done in a case conference type environment.

The mistake is not having sufficient independence and using the court for "best interests" decision making.

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R v SUSSEX JUSTICES ex p McCARTHY [1924] 1 KB 256

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