Legal Update – Craig Ward
Legal Update
Consultation
How good’s your GP’s regulation?
The Department of Health (DH) is dieing to find out in their consultation on Fitness to Practice.
The regulation of health professionals aims to foster good practice and protect the public from poor or inappropriate practices. Professional regulation is currently conducted through adjudications. The DH wishes to know if this the best option or do others exists.
See www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_118459.pdf by the 11th October 2010.
Rural Communities
The Commission for Rural Communities, which promotes sustainable rural communities seeks your views on how cuts are affecting rural communities. Consultation ends on the 13th September 2010. See www.ruralcommunities.gov.uk/2010/08/06/big-society
Legal Knowledge
Deprivation of Liberty – what to do about being deprived
If you lost mental capacity and where formally detained under the Mental Capacity Act 2005 ‘deprivation of liberty safeguards’ or DOLS, challenging this detention may be made using a Lasting Power of Attorney.
Many people have come across someone being sectioned under the Mental Health Act 1983, perhaps for assessment or treatment. It is also lawful under the Mental Capacity Act 2005 to deprive someone of their liberty, so they can be provided with care or treatment.
The Department of Health says around seven thousand people have so far been lawfully deprived of their liberty. They also report, in their ‘Briefing on Mental Capacity Act Deprivation of Liberty Safeguards – April 2010’ that 125 people were unlawfully detained. Where there is a registered Lasting Power of Attorney in place, the person granted authority to act on behalf of someone who has lost mental capacity may challenge this detention.
Before the DOLS measures were introduced, if you lost mental capacity and where not ‘sectioned’, it was very difficult to challenge a detention in hospital. The case of HL, which brought these issues to prominence, followed an admission to the Bournewood psychiatric unit in July 1997. HL lacked sufficient mental capacity to decide if he should stay in hospital. The hospital decided he should stay where he was, even though his carers wanted him to leave. The matter went to the European court (application 45508/99 HL v UK (2005)), where it was successfully argued HL was unlawfully deprived of his liberty following a breach of Article 5 Human Rights Act 1998. This led to a change in the law with the ‘deprivation of liberty safeguards’ or DOLS coming into force.
Lasting Powers of Attorney are useful documents, allowing not only financial management, but care and treatment decisions to be made as well where someone has lost mental capacity.
Just as many people would routinely consider making a will, equally a Lasting Power of Attorney should also be made. We may never need to use it, but it’s there just in case. The alternative management of someone who has lost mental capacity is through a Court of Protection Deputyship, which can be quite costly to run.
Craig Ward
Solicitor
Craig Ward is Author of the book ‘Lasting Powers of Attorney: A Practical Guide’ (The Law Society)