Cartwright King recently represented X in the Court of Protection in his successful challenge to his deprivation of liberty in the case of X v A Local Authority  EW COP B25.
X was a retired lawyer who was thought to suffer from Korsakoff’s syndrome. He was subject to a deprivation of liberty standard authorisation and was being detained in a care home. X sought to challenge that deprivation of liberty by way of an appeal to the Court of Protection.
Whilst the case was ongoing, one standard authorisation expired and the managing authority (the care home) made an application to the supervisory body for a further standard authorisation. The relevant assessments were completed, including an assessment to determine whether X had capacity to make decisions about his residence and care. The consultant psychiatrist who was tasked with completing the mental capacity assessment concluded that X had capacity to make decisions about his residence and care and therefore a standard authorisation could not be granted.
The local authority sought orders from the court authorising X’s deprivation of liberty whilst further evidence was obtained in respect of X’s capacity. However the Official Solicitor, on behalf of X, asserted that in the absence of evidence to the contrary, X should be presumed to have capacity and the court should not make orders authorising X’s deprivation of liberty at the care home.
His Honour Judge Cardinal concluded in the final paragraph of his judgment:
X now has capacity to make decisions as to residence, care and medical treatment and that has been amply demonstrated in the case. Even if he has other problems he can reflect and logically reason, and is much improved from the man he was last December. That does not mean he will not relapse. It does not mean that he will not be foolish enough to resume drinking but, in my judgment, in all the circumstances it would be inappropriate to make a declaration under section 48 and in those circumstances, in the absence of a standard authorisation, his compulsory detention comes to an end.
This case shows how important it is that individuals have the right to appeal deprivation of liberty authorisations to the Court of Protection. Capacity is a complex issue and it can sometimes be difficult to differentiate between a person who lacks capacity and a person who may make unwise decisions. Indeed, the professionals were split in their opinion in this case. However the Court was satisfied that X had capacity to make decisions about where he should live and the care he should receive and whilst it may be the case that X would return to excess drinking, he had the right to make that decision.
Non-means tested legal aid is available to those individuals being detained. Cartwright King has a team of specialist Court of Protection lawyers who are experts in cases involving deprivation of liberty.
For further information please email firstname.lastname@example.org or call us on 0845 894 1622.