How the Court of Protection is a force for good in social care

The Court of Protection can be used to authorise a vulnerable adult's removal from an abusive home environment if the adult lacks the mental capacity to decide where to live and the court considers removal to be in the adult's best interests, writes Ed Mitchell.

The Court of Protection can be used to authorise a vulnerable adult’s removal from an abusive home environment if the adult lacks the mental capacity to decide where to live and the court considers removal to be in the adult’s best interests, writes Ed Mitchell.

Recent decisions of the court show a tendency to grant a council’s removal application where a vulnerable adult’s carer has no real insight into the adult’s needs.

In PCT v P (December 2009), for example, the court held that it was in an adult’s interests to live apart from his mother in whose care he had become socially isolated and unusually dependent.

Another example, involving an older person with dementia, was HBCC v LG (June 2010). In that case the woman’s daughter was actively dismissive of her mother’s care needs; for example, she had performed amateur surgery on her sores rather than seek medical attention. That lack of insight meant that it was not in the woman’s best interests to live with her daughter. Instead, she was placed in a care home.

Even people with significant learning disabilities can in law make decisions about where they live and with whom they have contact. This was illustrated by the decision in LBL v RYJ (September 2010). It involved a young woman with significant learning disabilities.

Having referred to the Mental Capacity Act 2005’s presumption of capacity, the court decided that the young woman could make decisions about where to live. Therefore, her mother could not apply to the court to be authorised to make residency decisions for her.

A different result, however, is sometimes seen where learning disabilities interact with mental illness. In RT v LT (July 2010), for example, a young woman with moderate learning disabilities also had a personality disorder. The interaction of these two conditions rendered the young woman incapable in law of making decisions about where to live.

Despite much negative publicity about the Court of Protection being a supposedly secretive, draconian body, the reality is that the court has done much to cement the rights of people with learning disabilities.

It provides a clear legal mechanism for extracting vulnerable adults from abusive environments and has reminded practitioners that there can be no assumption that people with severe learning disabilities are incapable of making decisions.

More legal updates are available at http://www.communitycare.co.uk/resources/legal/

Ed Mitchell is a solicitor and editor of Social Care Law Today

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