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Introduction
At the heart of any legal framework like the Mental Capacity Act (2005) and Deprivation of Liberty Safeguards (DOLS) there is, inevitably, a key tension between empowering people to make their own decisions (and mistakes) and protecting those who are not able to do so. There is a closely related issue about the proper role of the state to intervene where practical solutions to the dilemma may have been reached between the person who may lack capacity ("P") and their family or carers.
In this paper I will consider in particular the impact of the recent key judgment by Lord Justice Munby in P v. Cheshire West and Chester (Court of Appeal 9, November 2011), and the practical implications it might have in the work of those trying to strike the balance between empowerment and protection.
Deprivation of liberty
Cheshire is a case about deprivation of liberty. Article 5 of the European Convention on Human Rights (ECHR) describes the right not to be deprived of liberty without due legal process. The landmark case of Bournewood ([9] HL v. UK , 2004) established that the common law doctrine of "necessity" is not a sufficient legal framework to protect someone who lacks capacity to decide on care and residence and is being deprived of liberty. In Bournewood , HL a man with autism and learning difficulties was kept at a hospital on an informal basis, without the procedural protection of the Mental Health Act, though his carers wanted to take him home. In response to the European Court of Human Rights ruling, the government used the Mental Health Act 2007 to add the DOLS to the Mental Capacity Act 2005.
With effect from April 2009, the DOLS system allows a local authority or Primary Care Trust (PCT) to scrutinise and authorise any deprivation of liberty of an incapacitous patient in a care home or hospital. Outside those settings, unless the Mental Health Act or another legal framework is used, any deprivation can only be authorised by the Court of Protection. In any case, the first question is whether someone is being deprived of their liberty. If so, the local authority/PCT or Court of Protection must assess whether it is lawful, by reference to a number of...