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Irwin Mitchell Instructed By IMCA In Court Of Protection Proceedings

Irwin Mitchell’s Public Law & Human Rights solicitors were instructed by an Independent Mental Capacity Advocate ("IMCA") to act for L, who was aged 54 and had a diagnosis of Schizophrenia. L was a patient in a psychiatric ward at her local hospital, having been originally admitted under section 3 of the Mental Health Act 1983. As a result her section was lifted, but she was not discharged to her home because it was felt that she would be at risk of exploitation by her son and daughter, who lived at L’s residence. In the past L had been physically, emotionally and financially abused by her son and daughter.

L repeatedly expressed her desire to return home, and her IMCA spoke with the local authority social services department in an attempt to break the deadlock. The local authority considered making an application to the Court of Protection, but in the end declined to do so and so L’s IMCA sought legal advice from Irwin Mitchell on L’s behalf.

Legal Aid was obtained in L’s name, based on a means test of L’s finances, and a formal letter was sent to the local authority requesting that they apply to the Court of Protection seeking orders to remove the son and daughter from the home in order to allow L to be discharged from hospital. Irwin Mitchell’s Public Law & Human Rights team applied to the Court in L’s name, with L’s IMCA instructing Irwin Mitchell on L’s behalf in a formal legal role known as ‘litigation friend’

The matter came before a Judge of the Court of Protection, who made orders for an expert’s report to be received on the issue of L’s mental capacity. The expert’s report confirmed that L lacked the capacity to make decisions about her own welfare and therefore the Court was able to make orders requiring the son and daughter to leave the property, allowing L to return home. The Court also made orders to not allow the son and daughter to have contact with L except under the supervision of the local authority.

During the course of the proceedings, the Court approved of the appointment of L’s IMCA to act as her litigation friend in these proceedings, which came about solely as a result of the steps taken by the IMCA to seek legal advice on behalf of L.

More guidance for IMCAs looking to take legal action on behalf of clients who lack capacity can be found here.

To contact Mathieu Culverhouse in the Public Law & Human Rights Team call 0370 1500 100 or complete our enquiry form.

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