Mental capacity, DoLS and Court of Protection
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Leading experts
Hill Dickinson LLP are the national leading experts on the Mental Capacity Act 2005 (MCA) and deprivation of liberty (DoLS), with more lawyers independently ranked in directories as leading practitioners in this field than any other firm.
Our lawyers have been involved in the leading case law, including at Court of Appeal and in the Supreme Court, as well as being involved in the development of national policy, guidance and training.
You will be aware of the announcement on 5 April 2023 by the Department of Health and Social Care that the implementation of the Liberty Protection Safeguards (LPS) will not go ahead this side of a general election (anticipated to be in Autumn 2024).
This leaves us with all the challenges with the current system that LPS was supposed to address, in particular:
- Dealing with those outside the scope of DoLS – people deprived of their liberty in the community or under the age of 18.
- Even where DoLS applies – over the age of 18 and only in care homes and hospitals – the gulf between the demand on the system and its resources, leaving a huge backlog and a delay in authorisations.
- Hospital cases, in particular, are not typically prioritised by local authorities, and there is also real uncertainty in how to apply the law on deprivation of liberty in a medical treatment context.
To view our video resources relating to MCA/DoLS click here
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How we can help
MCA and DoLS webinars and updates
We hold regular free webinars on MCA and DoLS.
We also provide regular e-shots and updates, as well as our quarterly Court of Protection newsletter.
Sign up here for the mailing list for these events and updates.
MCA and DoLS training
We are pleased to provide a range of training, from an hour to a full day, in person and online, on the full range of MCA and DoL issues.
Check out some feedback from attendees at our events:
Excellent interactive and informative session. Great speakers!!
Professional and informative webinar. Great to hear other people’s views and opinions and share mine.
Great to network on such an important topic that will influence future practice and people’s lives.
MCA and DoLS policy review
Many organisations will have deferred reviewing their polices on the MCA and DoLS, with the LPS apparently on the way. Those policies should be reviewed and updated, to make sure that they reflect the latest case law, as well as broader changes in the health and social care landscape.
We would be pleased to offer policy reviews as a fixed fee, for cost certainty.
DoL in acute hospital and hospice settings
We can review the policy approach to DoL in the acute hospital and hospice setting, having been involved in the key Court of Appeal judgment (Ferreira) on this issue.
DoL in the community
For those people deprived of their liberty in the community – ie not in care homes/hospitals where DoLS applies – the court has developed a streamlined process (COPDOL11) to deal with these at scale.
These applications are paper-based which means that a lot of supporting evidence setting out the residence, care and other arrangements for the person must be provided to the court.
We assist our clients with the preparation of these applications by working closely with case workers to obtain the relevant information and documents, complete the application form and ensure that all evidence provided meets the court’s requirements. This includes liaising with Rule 1.2 representatives in the completion of their statements.
We were involved in the key Court of Appeal judgment (Re X) on this, and have pioneered a bespoke fixed fee approach to bring multiple applications through the court quickly and cost effectively. Our offer can be tailored to meet the needs and the resources of the client, with a sliding fee scale, depending upon our level of involvement.
We would be delighted to discuss developing and delivering a bespoke, fixed fee approach for you.
Check out some of our feedback on our COPDOL11 work:
“She said it was the most helpful/informative information she has ever received for a [Rule 1.2] statement.”
“Each of you have continued to work with dedication with the team directly and this has been greatly appreciated by the team and myself to ensure all cases continue to progress seamlessly.”
“Thanks for all your hard work this year. You are a real pleasure to work with and have been so helpful for the ICB and all the DOLs work.”
DoL and Children
Deprivation of liberty for children is a particular issue, especially after a Supreme Court judgment (Re D, 2019) confirmed that parental consent cannot “authorise” a DoL for a child once they have reached the age of 16, so all cases of DoL for 16-17 year olds need court approval. A dedicated national court has been set up to deal with this, in which we have particular expertise.
Serious medical treatment
We are frequently instructed to represent NHS trusts and other health organisations to represent them in complex and urgent serious medical treatment decisions, including in the Court of Appeal.
Court of Protection work
More generally, challenges to DoLS authorisations under MCA s21A will continue, and will still get non-means tested legal aid. The rate of challenge may well increase without the LPS reforms addressing some of the shortcomings of DoLS. Other Court of Protection cases in a health and care context may or may not include a deprivation of liberty issue.
We can deal with all these cases, nationwide and cost effectively, almost always doing the advocacy ourselves, including using in-house barristers and solicitor advocates, rather than incurring counsel’s fees.
Contact us with any queries about these or other services on MCADOLS@HillDickinson.com.
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Our clients
We are proud to advise NHS England, and NHS providers and commissioners and independent sector providers nationwide on these issues.
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Our experience
- We have been involved in some of the leading cases on mental capacity and deprivation of liberty
- We are advising at national policy level on the development and implementation of LPS
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Resources
We regularly update our clients and contacts with details on the latest insights into Liberty Protection Safeguards. Our articles, videos and other materials can all be found here.
Key contacts
