Human Rights in the Court of Protection

Human Rights in the Court of Protection

Please note this paper was delivered to our Wales conference in June 2016 (and has not been updated).

The introduction of the Deprivation of Liberty Safeguards (“DoLS”) to the MCA 2005 on 1 April 2009 imposed a statutory responsibility on local authorities to oversee and operate a scheme to lawfully deprive the liberty of adults who lack the capacity to consent to arrangements made for their care or treatment in either hospitals or care home in their own best interests.

The responsibility of local authorities was further extended by the decision of the Supreme Court in P v Cheshire West and Cheshire Council, and P and Q v Surrey County Council [2014] UKSC 19 which effectively broadened the scope of when it could be said that an incapacitated individual has been deprived of their liberty. Since Cheshire West there has been an exponential growth in claims involving scrutiny of the lawfulness of the placement of individuals who lack capacity in a variety of care settings, including those who receive care at home.

This seminar will focus on how the right to liberty under Art.5 of the European Convention of Human Rights (“ECHR”) has been interpreted and applied by Court of Protection (“CoP”) within the context of the Mental Capacity Act 2005 (“MCA 2005”). It will consider the major developments in this rapidly evolving area of law, the recent focus on cases involving children and practical and procedural considerations involved in claims that are brought under the Human Rights Act 1998 (“HRA 1998”) in the CoP.

Author: Fiona McGhie & Rhys Hadden

Publication date: November 17 2016