No time for proper blogging this week, but if you’re looking for something to read I really recommend this report
on a roundtable organised by the Essex Autonomy Project about the deprivation of liberty safeguards. The roundtable was held in January, and was organised with the help of the Arts and Humanities Research Council and the Office of the Public Guardian, and was attended by lots of people with interest in, and knowledge of, DoLS. I highly recommend the report (and I can confirm it’s an accurate report, as I was fortunate enough to bag an invite!).
In other news, if you haven’t already read this month’s Court of Protection Newsletter
from 39 Essex St, then do so. It contains worrying news that the Official Solicitor has reached the limit of his resources with regard to Court of Protection healthcare and welfare cases. He will still accept cases relating to emergency medical treatment and s21A MCA appeals against detention ‘other than those brought by the relevant person’s representative.’ The Court of Protection Rules 2007 require that ‘P’ has a litigation friend
, and given that the OS acts only as a litigation friend of last resort, it is hard to see where another litigation friend can be found for many of these cases. Ergo, it is hard to see how important matters, that will often engage Article 8 rights to private and family life, can access justice. Presumably, if the OS is currently only able to accept s21A MCA appeals that are not brought by P’s representative, then it seems possible that P’s Article 5 rights could also potentially be infringed. Following the ruling in Stanev v Bulgaria (2012)
, I think the government should be extremely concerned that adults who are said to lack capacity, or their supporters, may struggle to challenge decisions made about their lives if they are unable to enlist his support for these matters. Clearly the immediate answer to this is for resources to be found to support the Official Solicitor in the important work of his office. In his annual reports
the Official Solicitor has repeatedly warned about the climbing workload engendered by the Mental Capacity Act; it seems his warnings have not been heeded.
UPDATE 29/02/2012: A note (pdf)
on the Ministry of Justice’s website clarifies the situation of the Official Solicitor regarding care and welfare cases. I’ll post the relevant sections of his note in full:
The Official Solicitor wrote to the President of the Court of Protection on 15 December 2011 to inform him that he had reached the limit of his resources with regard to Court of Protection welfare cases, he did not mean by this that he had run out of money, but rather that his available staff, (after movement of staff to this area of work and recruitment to the full extent which was possible), to manage this class of case were unable to take on any more of these cases.
As a result of this development the Official Solicitor is unable to accept invitations to act in any except the most urgent cases, namely serious medical treatment cases and section 21A appeals, other than those brought by the relevant person’s representative. Section 21A appeals may nevertheless be subject to a delay in acceptance until a case manager becomes available to whom the case may be allocated.
All other cases, once his acceptance criteria are met, are being placed on a waiting list. These cases will be accepted, when a case manager becomes available, in chronological order starting with the earliest placed on the list, unless exceptional priority is given due to this office considering the case to be very urgent or should otherwise be expedited.
In the event that the court is of the view that a case should be considered as most urgent, or should be expedited for other reasons, the court should kindly inform the Senior Lawyers in the Official Solicitor’s CoP Healthcare and Welfare teams, of the court’s reasons and consideration will be given on individual merit.
If at any time another litigation friend is appointed in this case before the Official Solicitor is in a position to accept the invitation the parties are asked to notify him as soon as possible, so that the file may be closed and the case removed from the waiting list.