Law on rights of incapacitated people too complex and inaccessible, says judge

A High Court judge has strongly criticised the complexity of the law governing the fundamental rights and welfare of incapacitated people, describing the situation as a “truly unhappy state of affairs”.

In C v Blackburn & Darwen Borough Council and Ors [2011] EWHC 3321 (COP), Mr Justice Peter Jackson said: “As this case shows, its intricacies challenge the understanding of professionals working in the field and are completely inaccessible to those for whose benefit the legislation has been devised, including those with a relatively high level of understanding, such as Mr C.”

The case involved a single man aged 45 (Mr C) who lacked capacity to litigate or make decisions about where he should live.

An application had been made on his behalf under s. 21A Mental Capacity Act 2005 for the discharge of a standard authorisation under the MCA Deprivation of Liberty Safeguards.

The authorisation had been sought by the managers of Mr C’s care home and granted by the local authority as the supervisory body.

The application for discharge raised the question of whether Mr C was being deprived of his liberty and, if he was, whether that was necessary. The proceedings also raised a wider question about the jurisdiction of the Court of Protection in relation to someone who, like Mr C, was subject to a guardianship order under s. 7 of the Mental Health Act 1983.

The judge ruled that there had not been a deprivation of liberty in the case.

Click here to read a review of the case by the Court of Protection team at 39 Essex Street.