CHAPTER 23
Mental capacity
23.8The statutory mental capacity scheme and resources 23.11Critical statutory provisions 23.12Assessment and care planning Cases
23.24R v North Yorkshire CC ex p William Hargreaves (1997–8) 1 CCLR 104, QBD An assessment that failed to take into account the service user’s preferences, incompatibly with the statutory guidance, was unlawful, notwithstanding her communication difficulties
23.25Z v United Kingdom Application no 29392/95, (2001) 4 CCLR 310, ECtHR Article 3 imposes a duty to take reasonable steps to provide effective protection to children and other vulnerable persons whom the state knows, or ought reasonably to know, are being subject to inhuman or degrading treatment
23.26R (A and B) v East Sussex CC [2003] EWHC 167 (Admin), (2003) 6 CCLR 194 The recognition and protection of human dignity is a core value protected by Article 8 ECHR. Nonetheless the rights of persons with disabilities required to be balanced against those of their carers, where there was a conflict
23.27A Local Authority v A [2010] EWHC 978 (Fam), (2010) 13 CCLR 404 Article 5 ECHR imposed a duty on local authorities to take reasonable steps to prevent the deprivation of liberty of a child or vulnerable adult that it knows or reasonably ought to know about
23.28AH v Hertfordshire Partnership NHS Foundation Trust [2011] EWHC 276 (COP), (2011) 14 CCLR 301 It was not in the best interests of a severely learning disabled man to be moved from an NHS facility where he had lived for many years to a flat in London
23.29A Local Authority v DL, ML, GRL and JP [2011] EWHC 1022 (Fam), (2011) 14 CCLR 441 The court retained an inherent jurisdiction to protect persons who, whilst not lacking mental capacity, were incapacitated from making a relevant decision by reason of constraint, coercion, undue influence or other vitiating factors
23.30Re MN (An Adult) [2015] EWCA Civ 411, (2015) 18 CCLR 521 The Court of Protection has no power to require a public authority to provide different services, only to consider whether services on offer are in P’s best interests, so any legal challenge to the sufficiency of services offered must be brought by way of judicial review
23.31RP v United Kingdom Application no 38245/08, (2013) 16 CCLR 135, ECtHR Providing there were adequate safeguards, it was compatible with Article 6 ECHR for the Official Solicitor to represent an incapacitated mother in care proceedings relating to her daughter
23.32P v Cheshire West and Chester Council, P and Q v Surrey County Council [2014] UKSC 19, (2015) 18 CCLR 5 A person who lacked capacity to consent to care arrangements was deprived of their liberty if they were under continuous supervision and control by those caring for them and were not free to leave.
23.33R (SG) v Haringey LBC [2015] EWHC 2579 (Admin), (2015) 18 CCLR 444 The failure to appoint an independent advocate, under section 67(2) of the Care Act 2014, for a vulnerable adult, who spoke no English and was illiterate, and who suffered from PTSD, insomnia, depression and anxiety, rendered the assessment unlawful
23.34North Yorkshire CC and A Clinical Commissioning Group v MAG and GC [2016] EWCOP 5, (2016) 19 CCLR 169 The MN principle also applied in the context of alleged deprivations of liberty