One of the most fundamental rights that each of us has is the right to our own liberty. However, there are times when society has to act to deprive a person of his or her liberty.
The circumstances in which that arise should of course be limited and there should be in place appropriate protections. When this applies to a person suffering from mental incapacity, the position is far more pronounced.
This is covered in the Mental Capacity Act which does provide specific circumstances under which a person suffering from mental incapacity (whether that is dementia or any other such disability) can be deprived of their liberty, whether that is for their own safety or for the safety of society as a whole, which features a number of safeguards.
However, the law in this area has become so cumbersome, and often extremely bureaucratic, that in many cases people have been deprived of their liberty when they should not have been, despite the various safeguards that are in place. The system as a whole is unable to cope. The statutory timescales have only been kept in a minority of cases.
The recent Law Commission Report has made some helpful recommendations to try to avoid the unnecessary failings under the current system, which has seen in the year 2015/16 just fewer than 200,000 people deprived of their liberty.
One of the recommendations, which is to be welcomed, is that those making the decision should place greater weight on the person’s wishes and feelings. That is fine if such a person can make their wishes clear, but what about those who lack such capacity, the very people the legislation is aimed to protect?
I think this should be extended further to include a person’s attorneys where they have an appropriate power of attorney. This would enable the members of the family who hold for example a health and welfare lasting power of attorney to assist with the decisions, so that an institute, whether that be a hospital or care home for example would have to consult with the attorney.
This brings into focus the importance of a person having a health and welfare power of attorney, which is something we have constantly emphasised to our own clients.
We believe that with a proper power of attorney in place and with additional safeguards enshrined in law so that the authorities will have to consult with the attorney, people will have a high level of protection. No person should be deprived of their liberty by any authority whether it a care home or hospital having consulted with their attorney.
The person who already suffers from mental incapacity is too late to request or agree to a power of attorney. One has to consider these things at a much earlier stage in order for them to be an effective safeguard in respect of one’s most fundamental right – that of liberty.
: Jeffrey Cohen, Head of Mackrell Turner Garrett’s Private Client department.
Jeffrey is Head of the Private Client department of Mackrell Turner Garrett’s London office. He is a highly experienced private client lawyer and focuses on all aspects of private client law, wealth management, tax and trust law including estate and inheritance tax planning.
Jeffrey is also experienced in drafting wills, probate administration, establishment and running of trusts including charity trust foundations, court of protection work, powers of attorney and offshore tax planning. In 2013, Jeffrey was recommended in the Legal 500 directory of legal services providers and was more recently highly recommended in the prestigious Spear’s 500 directory.