Irwin Mitchell’s Public Law & Human Rights team was instructed by an Independent Mental Capacity Advocate (IMCA) to protect the interests of a vulnerable client.
Our client, Daniel, was a 31-year-old man with a diagnosis of autism and learning disability. In 2012, he disclosed to a support worker that he had been sexually abused by his father. After the police were informed of this allegation, Daniel was removed from his family home and placed in a respite facility by his local social services team.
Daniel wished to return home, but remained in respite for much longer than he would usually spend there. Daniel's IMCA was concerned that he was effectively 'stuck' in the respite placement, with no immediate plans in place either for him to return home or to move to a suitable alternative long term placement.
Daniel Left Unclear On His Residency
The local authority took the view that an application to the Court of Protection wasn't required, as the family hadn't complained about Daniel’s removal from the family home. Daniel’s IMCA raised concerns about Daniel’s rights at a number of meetings with the local authority, but they continued to decline to apply to the Court of Protection.
Daniel’s own wishes and views as to his residence, care and contact with his family were unclear. He was familiar with the setting he was placed in, but began to show increasingly anxious behaviour and aggressive outbursts.
The local authority hadn't sought authorisation for Daniel to be deprived of his liberty in the respite placement and it wasn't clear whether they considered that his circumstances amounted to a deprivation of liberty.
How We Helped
Irwin Mitchell's Public Law & Human Rights team wrote to the local authority to invite them to issue proceedings in the Court of Protection, but they declined to do so. Therefore, on the advice of counsel, we issued proceedings in the Court of Protection in Daniel’s name under S.21A of the Mental Capacity Act.
Following this, a best interests meeting was held at which it was unanimously agreed that it would be in Daniel's best interests to move to a supported living placement.
Hearings then took place in the Court of Protection which ultimately resulted in Daniel moving into a supported living placement, where he settled in well. Contact orders were also made to regulate his contact with his father, with these restrictions to be subject to regular review by the local authority.
Daniel's IMCA said: "Had it not been for the representation afforded my client by Irwin Mitchell, it is not clear that the local authority would have addressed their obligations under the Mental Capacity Act 2005."
For expert advice on matters relating to mental capacity, the Court of Protection and deprivation of liberty, please contact Lisa Richardson of Irwin Mitchell’s Public Law & Human Rights team on 0370 1500 100 or complete our enquiry form.
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