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January 2011



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Case of a man with severe learning disabilities, who the court of protection ruled was deprived of his liberty, highlights the need to ensure authorities do not escape public scrutiny

Posted by Siobhain Butterworth Wednesday 14 July 2010

The Court of Protection keeps a low profile: its default setting, prescribed by statute, is privacy; its hearings take place behind closed doors and when its decisions are published the parties are not usually identified.

The very strong, it has to be said, justification for this secrecy is that people who don’t have the mental capacity to make choices about their day-to-day affairs are entitled to the same degree of privacy as those who do. The unfortunate byproducts of this system are an alphabet soup of obscure judgments and an absence of public scrutiny of some important issues of wider concern. The case of E, which was spotted by the Press Association’s legal editor on the Bailii website, is a case in point.

At a hearing in March, the court ruled that E, a 19-year-old with severe learning disabilities, was unlawfully deprived of his liberty, in breach of Articles 5 and 8 of the European court of human rights, when an unnamed local authority removed him from the family home of a woman (F) who had fostered him for more than a decade. The local authority neither complied with legislation nor sought an order from the court of protection, as it should have done, when it placed E first in emergency respite care, then in a residential care home owned by a company referred to in the judgment as X Ltd.

Mr Justice Baker described E’s removal from F’s care as “an arbitrary act” and said the local authority’s “deplorable failure” to take into account the close relationship between E and F and its failure to arrange any contact between them for several months constituted a serious breach of E’s Article 8 rights to a home and family life.

The facts of E’s case twist this way and that. For various reasons the local authority did not believe that F was a suitable carer, despite the fact that she had looked after E for several years. Neither the local authority nor X Ltd’s director believed that E was unlawfully detained and both thought the care home improved his quality of life.

Read in Full:  http://www.guardian.co.uk/law/2010/jul/14/court-protection-privacy-rights

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