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Case study: Court of Protection and deprivation of liberty

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Our specialist Court of Protection team recently obtained final Order in a Court of Protection dispute relating to welfare. The application was by a Local Authority (LA), for a declaration that it would be in P’s best interests to move out of his sister’s home and care, into a supported living placement. (The subject of the application is referred to as P, as a Protected Party in the proceedings).

P was assessed to lack the capacity to decide where to reside, and as such a best interests decision was required to decide whether a move to supported living would be in P’s best interests.

P’s sister had cared for P at her property for over 22 years, following the death of their parents. The LA was of the view that it would in P’s best interests, however, to move into supported living accommodation, to allow him more independence.

We acted for P’s sister in the proceedings, who opposed the application and was of the view that it was in P’s best interests to remain living with her at her property, with her care and support. P requires a significant amount of support and has a package of support in place from the LA.

One of the directions ordered by the Court was for the parties to instruct an independent social worker to produce a report as to what would be in P’s best interests, to provide an independent view. The report confirmed that P did lack the capacity to decide where he wished to live, and crucially, the expert was of the view that it would be in P’s best interests to remain residing with his sister, with the package of support in place which was working well and meeting P’s needs.

All parties (the LA, P (by his litigation friend the OS) and P’s sister) accepted and agreed to the recommendations of the report, and thus at the final hearing, the Court declared that P lacked the capacity to make decisions as to his care and residence, that it was in P’s best interests to remain with his sister, with a support package in place as recommended by the expert.

The hearing was initially set to be a directions hearing, however following the report of the expert, all parties sought to work together to limit the need for ongoing and costly litigation, which resulted in an agreed Order being put before the Court at the hearing, in conclusion of the case.

Interestingly, the Court of Protection also declared that it was in P’s best interests to be deprived of his liberty in the context of both residence and care. This was due to recent case law developments, namely the widely cited Cheshire West case, which widened the applicability of deprivation of liberty to all living arrangements, including family arrangements, if (i) the person is not free to leave and (ii) the person is under continuous supervision and control. P is unable to go out alone due to his lack of awareness of risk and danger, and the Court deemed this test to be satisfied.

The LA therefore obtained standard authorisation for the deprivation of liberty at the hearing, which the Court ordered must be subject to regular review.

If you are involved in a best interests dispute like this one, or have concerns that a family member or loved one is being deprived of their liberty, then we are able to provide specialist advice, guidance and representation through this process. Call us on 01616 966 229 or complete or online enquiry form.