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Patients subject to DOLS applications must have access to independent representation

Charles J adjourns all similar cases until a solution is found

People lacking mental capacity who are the subject of deprivation of liberty applications must have access to independent representation in court hearings, Mr Justice Charles, sitting in the Court of Protection, has said.

The Law Society, which intervened in the case of JM & Others [2016] EWCOP 15, has called the case 'unprecedented'.

Law Society President, Jonathan Smithers, said:

"Anyone living with dementia, Alzheimer's or a learning disability must receive treatment that is in their best interests, whether they are in a hospital, care home or a family home. These cases can be about enforced medical treatment, restraint, limits on people's movements or on visitors. Many families will understand the challenges of making decisions for a relative who is unable to give their consent.

"When a vulnerable person doesn't have friends or family to represent them during a decision to restrict their liberty, it is vital that person is able to participate in the decision-making process. If this is not possible, then they must have a legal representative to protect their rights, as well as their health and general welfare."

Charles J, Vice President of the Court of Protection, has required the government to ensure that each vulnerable individual whose liberty is considered in the Court of Protection has appropriate representation when their case is considered. The judgment was given in respect of four test cases in which no appropriate representative could be found. The reasons for lack of representation included lack of resources.

Mr Justice Charles also determined that all future similar cases will be adjourned until a workable solution is found. This means that large numbers of such cases, concerning what are often crucial health and welfare decisions, will now be pending indefinitely.

As to the number of cases likely to be affected, Charles J said:

"At present about 90 cases in the class represented by these test cases have been issued and are stayed but for the reasons set out in NRA [2015] EWCOP 59, and confirmed by the evidence in these cases, this does not provide a reliable guide to the number of cases in that class in which, as a result of the [Supreme Court] decision in Cheshire West, public authorities need to apply to the COP for a welfare order to authorise a deprivation of liberty."

Law Society President, Jonathan Smithers, added:

"The Law Society gave evidence in this and other related cases because solicitors told us that vulnerable people's rights are at risk. The Law Society has a role set out in statute which enables us to represent the public interest in cases like JM, where people's rights are threatened.

"We recognise that the Court of Protection, local authorities' and government budgets are stretched. But those who are least able to defend themselves should not be sacrificed on the altar of austerity. Today's judgment makes the government responsible for making sure vulnerable people are properly represented when important decisions are made about their care. We look forward to working with the Ministry of Justice to find a solution that is in the best interests of vulnerable people who come to the Court of Protection."

The judgment is here. For an article in Community Care, click here.