People unable to make decisions for themselves because they lack mental capacity must always have access to independent representation in court hearings about their personal liberty.
This is the finding of the Court of Protection following the intervention of the Law Society of England and Wales in the case of JM & others.
The lack of appropriate representatives available for vulnerable people in cases where decisions are made about their freedom has been an ongoing problem.
Law Society of England and Wales 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 hospital, a 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.”
In an unprecedented judgment, Mr Justice Charles, vice president of the Court of Protection, placed responsibility on 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 achieved by way of four test cases (JM & others) where no appropriate representative could be found for reasons including resource constraints.
Mr Justice Charles also ruled 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.
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.
“We recognise that the Court of Protection, local authority and government budgets are stretched. But those who are least able to defend themselves should not be sacrificed on the altar of austerity.
“This 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 follows the landmark Supreme Court case of P v Cheshire West & Chester Council; P & Q v Surrey County Council in 2014, which lowered the threshold for cases to go to the Court of Protection. This has increased the number of vulnerable people whose restrictions require authorisation by the Court of Protection.
The Court of Protection was established under the Mental Capacity Act 2005 and decides on issues relating to mental capacity. It has jurisdiction over questions relating to both health and welfare and financial affairs and is regularly called upon to decide upon applications for authorisations under the Deprivation of Liberty Safeguards regime.