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The paper will critically analyze the court decisions concerning the mentally incapacitated persons. The case is all about the judging criteria whether the arrangements for living made for the person who is mentally incapacitated amount to liberty deprivation. If they do, then authorization of the deprivation has to be made either by a court, or through the known procedures as the safeguards of liberty deprivation, as expounded in the Mental Capacity Act. However, if they do not, no conducting of independent checks whether the arrangements are in the area for the mentally incapacitated person’s best interest. Although the social and health care bodies who often make the arrangements do so in the belief and hope that can be devised practicably. This is not to criticize them if the safeguards are needed, but just a recognition that human rights caters for everyone; and that also includes the community’s most disabled members, and that the rights also include the same liberty rights as everyone else.
- P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council and another (Respondents)
- In this case, the court was to make a determination o the correct approach for determination whether under Article 5 of the Human Right European Convention; a person is deprived of his liberty rights. In application of the approach, the court made a determination whether P was deprived of his liberty
- P has severed learning and physical disabilities and is aged thirty nine years and therefore in making decisions, as to his residence and care, he lacks the mental capacity. Pursuant of the court order, he was placed in 2009 in Z house. There was no dispute about his Z house package between the parties as it was in his best interest. However, the only disagreement between the parties was whether the Z house package imposed restrictions upon P that deprived him of his liberty, which engaged under the Article 5 of the ECHR’s protective procedural rights.
- Z house is single-level spacious and large bungalow and P had access to two bathrooms and his own rooms. Furthermore, he continued attending a day center four times a week, and on the fifth weekday the hydrotherapy pool, where he used to leave the Z house at 9.30am up to 5.00pm when returns back. Similarly, was being supported to access the leisure ad community facilities by the staff, for instance, visiting his mother and trips to town.
On the other hand, P has a long history of shredding and putting his continence pads into his mouth. Several techniques have been applied to solve the problem. Methods that are non physical have been attempted and included dressing him in an onesie with a zip at the back for access. However, sometimes the members of staff have to opt for physical interventions such as insertion of fingers into P’s mouth to get out the materials.
- P and Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent)
In this next case, the Supreme Court was to decide how it should make a determination whether there was liberty deprivation for the Mental Capacity Act 2005 purposes. By the time of the first judgment instance, P and Q were sisters aged 18 years and 17 years and both were severely impaired mentally.
Both of them until 2007 lived with their mother where their lives were abusive and dysfunctional. By the time of the first hearing instance, P was residing with a foster carer. On the other hand, Q was residing in NHS children’s home that is special. The court restricted contact of P and Q with their mother and were also not permitted by the court to live with her.
At the foster carer’s home, P had a bedroom of her own where the door of the bedroom was never locked, moreover, P has never attempted to leave and in the instances where she attempted, the foster mother restrained her just for her safety. She was being taken for outings and she also attended college, but she was not receiving medication.
At the children’s home, Q was allocated her own bedroom. Occasionally she also suffered outburst that required physical restraints sometimes. Furthermore, to control her anxiety, she was being treated with a medication called Risperidone. She was also being taken to outings and was attending a college.
What is liberty deprivation?
Under the Human Rights Act 1988 cases, the courts have to consider frequently, in section 2(1) how far their duty in taking into account the Court of Human Rights and the European Commission’s jurisprudence goes. In these cases, the difficulty is not a troubling. The Mental capacity Act section 64(5) states that in the Act, in reference to a person’s liberty deprivation has the same meaning as in the Human Rights Convention Article 5(1). Because the main objective was to avoid the identified violation in HL 40 EHRR 761, it therefore seems clear that the expectations were to turn the Strasbourg’s court’s jurisprudence and to find out the meaning of liberty deprivation in this context.
The paper will summarize the general principles in the perspective of persons with mental disabilities or disorders. According to Susan Varghese et al, in determining whether an individual has been deprived of his or her liberty, analysis s.............
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