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26-624: The Court Funds Office is also responsible for money held on behalf of clients who are deemed mentally incapacitated. Under the Mental Capacity Act 2005 , a Deputy (usually a relative) is appointed to look after their financial affairs and draw money from the CFO as and when necessary to ensure the continued care of the Protected Party. Children who have been involved in an accident or obtained an award through civil litigation also have money held by

52-526: A detention of an incapacitated patient which did not comply with Article 5 of the European Convention on Human Rights had taken place; in particular, a person who is detained must be told the reasons for the detention and must also, under Article 5(4), have the right of speedy access to a court to appeal against the detention. The Mental Capacity Act was amended in May 2019 . This act will replace DoLS with

78-483: A majority verdict that he had not been detained in the meaning of the common law tort of false imprisonment because there must be actual and not just potential restraint to engage the tort. Some commentators have suggested this reasoning might be at odds with other false imprisonment precedents. Lord Steyn dissented from this aspect of the judgement, stating that the Trust's argument that HL, not being formally detained,

104-572: A new legal framework called Liberty Protection Safeguards (LPS). These will be used for anyone 16 or above who lacks capacity rather than 18 as previously used in DoLS. The "acid test' from the Cheshire West case remains, there is still no statutory definition of deprivation of liberty. The target date for implementation was October 2020, but it was announced by Helen Whately , Minister for Care, in July 2020 that

130-469: A writ of Habeas Corpus Ad Subjiciendum to direct that HL be discharged and returned to their care. In the High Court the judge considered whether HL had been unlawfully detained under the common law. He reasoned that 'there will be no restraint of the applicant until he has attempted to leave and the respondent, by its agent, has done something to prevent this'. The Court of Appeal , however, held that

156-468: Is established that he/she lacks capacity. 2. A person is not to be treated as unable to make a decision unless all practicable steps to help him/her to do so have been taken without success. 3. A person is not to be treated as unable to make a decision merely because he/she makes an unwise decision. 4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his/ her best interests. 5. Before

182-510: Is where money has been paid into a CFO account and lain dormant for a period of 10 years. Money can be left through a case collapsing, companies going into liquidation during trial; the result of house repossessions (the bank makes more than the debt from the sale but can't trace the original owner) and by the parties failing to progress or complete the action. The Court Funds Office is based in Sunderland . This article relating to law in

208-526: The Mental Capacity Act 2005 to contain the 'deprivation of liberty safeguards'. The deprivation of liberty safeguards were intended to plug the 'Bournewood gap' by providing administrative and judicial safeguards for adults who lack mental capacity who are deprived of their liberty in care homes and hospitals. The safeguards came into force in April 2009, but their uptake has not been as widespread as expected and their implementation has been subject to criticism from

234-769: The Parliament of the United Kingdom applying to England and Wales. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves. The five principles are outlined in Section 1 of the Act. These are designed to protect people who lack capacity to make particular decisions and to maximise their ability to make decisions and participate in decision-making, as far as they are able to do so. 1. A person must be assumed to have capacity unless it

260-602: The Act was amended by the Mental Health Act 2007 in July that year. These additions are known as the Deprivation of Liberty Safeguards ( DoLS ), and were implemented in April 2009. These amendments created administrative procedures to ensure the Act's processes are observed in cases of adults who are, or may be, deprived of their liberty in care homes or hospitals, thus protecting health and social care providers from prosecution under human rights legislation. Key elements of

286-470: The CFO. The money is invested in either a high paying interest account or part is invested on an interest account and part into the Equity Index Tracker fund (on the stock market). The CFO hold on to the funds until the child reaches 18 years of age, when they can apply to have the money and investments paid to them. The Court Funds Office also deals with a large unclaimed balance fund (£35m). This

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312-636: The DoLS are that the person must be provided with a representative and given the right to challenge the deprivation of liberty through the Court of Protection, and that there must be a mechanism for the deprivation of liberty to be reviewed and monitored regularly. The DoLS were introduced in response to the Bournewood case , on which the European Court of Human Rights ruled in October 2004 ( HL v United Kingdom ) that

338-608: The Health Service Ombudsman heard evidence from a range of professionals that the standard of HL's care had been poor in the hospital, and he had become distressed and agitated. Mr and Mrs 'E' sought from the court a judicial review of the decision of the Bournewood Community and Mental Health NHS Trust "to detain the appellant on 22 July 1997 and the Trust's ongoing decision to continue the Appellant's retention" and

364-505: The United Kingdom , or its constituent jurisdictions, is a stub . You can help Misplaced Pages by expanding it . This article about an organisation in England is a stub . You can help Misplaced Pages by expanding it . This article about an organisation in Wales is a stub . You can help Misplaced Pages by expanding it . Mental Capacity Act 2005 The Mental Capacity Act 2005 (c. 9) is an act of

390-519: The act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action. The following orders have been made under this section: The new measures that the Act introduced were: April 2007 October 2007 In response to the ruling by the European Court of Human Rights in HL v UK (2004) (the 'Bournewood' judgment)

416-466: The actions of the Trust had been based on a false premise that they were 'entitled to treat L as an in-patient without his consent as long as he did not dissent'. The court held that HL should have been detained under the Mental Health Act 1983, as the common law only provided for situations not already encompassed by statute. The Court also commented that a troubling feature of the appeal was that

442-408: The common law. They heard evidence that the ruling of the Court of Appeal might mean several tens of thousands of patients would have to be detained under the Mental Health Act. They considered that this might excessively stigmatise informal patients and have dire resource implications due to the costs of administering the Mental Health Act. In assessing whether HL had been detained, they concluded by

468-528: The distinction relied upon by the House of Lords between actual and potential restraint was not 'of central importance under the Convention'. They further found that the common law doctrine of necessity did not provide the requisite safeguards for informal detention of compliant but incapacitated patients to be described as 'in accordance with a procedure described by law' as required under Article 5(1)(e). Following

494-461: The implementation would be delayed, with full implementation expected by April 2022. Some of this delay was attributed to the Coronavirus disease 2019 pandemic . During this period a draft Code of practice will be produced which will go out to public consultation . On 4 April 2023 a further delay was announced by the government, who stated that any implementation is likely to be beyond the life of

520-473: The meaning of Article 5 of the European Convention on Human Rights . HL was an adult male who was autistic and had profound learning disabilities. He had lived in Bournewood Hospital from the age of 13 for over thirty years. In 1994 he was discharged into the community to live in an adult foster placement with carers Mr and Mrs 'E'. On 22 July 1997 HL became agitated at a day centre he attended and

546-486: The present Parliament. R v Bournewood Community and Mental Health NHS Trust In R v Bournewood Community and Mental Health NHS Trust the House of Lords ruled that a man who had been admitted to a psychiatric hospital without capable consent had not been unlawfully detained under the common law. A later European Court of Human Rights ruling, however, found that the man had been unlawfully deprived of his liberty in

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572-414: The respondent Trust was not alone in misinterpreting the Act, and potentially the judgement could apply to many patients informally detained like HL. They stated that the practice of informal detention in cases like HL could not justify disregarding the Act, especially in light of this bypassing its safeguards to detained patients. The House of Lords considered whether HL had been unlawfully detained under

598-545: The ruling of the ECtHR, the UK government launched a widespread consultation about the potential consequences of 'the Bournewood judgment', as it became known. During this consultation it was considered that compliant but incapacitated adults in care homes, as well as hospitals, might be deprived of their liberty in the meaning of the Convention. This consultation resulted in the amendment of

624-637: The safeguards of patients detained formally under the Mental Health Act. Although HL was in fact released back into the care of Mr. and Mrs. E in December 1997 after being held in hospital for five months, the case was pursued at the European Court of Human Rights (ECtHR) for a declaration that HL had been deprived of his liberty unlawfully in the meaning of Article 5 of the European Convention on Human Rights ('the Convention'). The ECtHR concurred with Lord Steyn that HL had in fact been detained, finding that

650-450: Was admitted to the Accident and Emergency Department at Bournewood Hospital under sedation. Due to the sedative, HL was compliant and did not resist admission, so doctors chose not to admit him using powers of detention under the Mental Health Act . HL never attempted to leave the hospital, but his carers were prevented from visiting him in order to prevent him leaving with them. A report by

676-405: Was always free to go 'stretched credulity to breaking point' and was 'a fairytale'. Unanimously their Lordships also held that even if HL had been found to have been detained, it would have been justified under the common law doctrine of necessity. Although concurring with this finding, Lord Steyn commented that this was an 'unfortunate' result as it left compliant but incapacitated patients without

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