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Personal liberty hearings must involve people lacking capacity, court rules

People lacking the mental capacity to make decisions for themselves should always be directly involved in court hearings about their personal liberty, the Court of Appeal has ruled.

The 16 June judgment affects people being cared for in hospital, care homes or supported living with conditions, such as Alzheimer’s, autism or learning disabilities, which mean that they cannot consent to restrictions on their liberty.

It means that streamlined procedures recently introduced in the Court of Protection – which makes decisions on financial or welfare matters for people who cannot do so for themselves – should not prevent people who lack capacity from participating in or having legal representation at hearings that involve measures affecting their liberty, such as restraint, restrictions on their movements or on visitors or enforced medical treatment.

The procedures, introduced in the Court of Protection to reduce pressure on the court, will now need to be reconsidered.

Welcoming the news, Law Society president Andrew Caplen said: “When someone is living with dementia or a learning disability, it is essential that the care and treatment which they receive is in their best interests.

“Sometimes that means providing treatment to which they are unable to consent. More and more families with elderly relatives are having to face that reality.

“The Law Society lodged an appeal because the fundamental rights of patients to participate in legal proceedings about their liberty were at risk. We are grateful for being given permission to appeal.

“We recognise the resourcing pressures on the Court of Protection, but anyone facing court proceedings which concern their liberty must be able to participate effectively in or be legally represented at those proceedings. We hope to work closely with the Court of Protection to resolve the issues brought to light by the judgment.”