LEGAL ASPECTS THE UNITED KINGDOM by jennyyingdi

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									              LEGAL ASPECTS:
            THE UNITED KINGDOM

                                 Katherine Allen
                               25 November 2011




Fentons Solicitors LLP a leading UK personal injury firm
www.fentons.co.uk freephone 0800 55 77 88
     RELEVANT LEGISLATION
• Human Rights Act 1988 (HRA 1988)
• Mental Capacity Act 2005 (MCA 2005)
• Equality Act 2010




Fentons Solicitors LLP a leading UK personal injury firm
www.fentons.co.uk freephone 0800 55 77 88
                 EQUALITY ACT 2010
• Identifies “disability” as one of 9 protected
  characteristics
• Provides protection against:-
      – direct or indirect discrimination
      – arising from discrimination, victimisation and
        harassment
• Equality and Human Rights Commission has
  produced statutory Codes of Practice in
  consultation with disabled people
Fentons Solicitors LLP a leading UK personal injury firm
www.fentons.co.uk freephone 0800 55 77 88
• Sets out duties for those:-
      – exercising a public function
      – providing goods, facilities or services to the
        public
      – employers
      – education providers
      – transport providers



Fentons Solicitors LLP a leading UK personal injury firm
www.fentons.co.uk freephone 0800 55 77 88
• Statutory public sector equality duty in
  force since 5 April 2011
• This duty requires public authorities to
  consider disability when carrying out
  their functions
• The Act permits positive action to
  improve participation in society by
  disabled people

Fentons Solicitors LLP a leading UK personal injury firm
www.fentons.co.uk freephone 0800 55 77 88
    HUMAN RIGHTS ACT 1998
• Gives legal effect in the UK to the
  fundamental rights contained in the
  European Convention on Human Rights
  (ECHR) and the UN Universal
  Declaration on Human Rights
• Article 5 – right to liberty
• Article 8 – right to family life

Fentons Solicitors LLP a leading UK personal injury firm
www.fentons.co.uk freephone 0800 55 77 88
• Section 3:-
      – So far as it is possible to do so, primary
        legislation and subordinate legislation must
        be read and given effect in a way which is
        compatible with the Convention rights
• All UK legislation should be considered
  within the context of the HRA 1998 and
  Strasbourg jurisprudence


Fentons Solicitors LLP a leading UK personal injury firm
www.fentons.co.uk freephone 0800 55 77 88
     MENTAL CAPCITY ACT 2005

• Legal framework to empower and
  protect people, including disabled
  people, who lack the mental capacity to
  make their own decisions
• Court of Protection – specialist Court
  dealing with issues relating to capacity

Fentons Solicitors LLP a leading UK personal injury firm
www.fentons.co.uk freephone 0800 55 77 88
• Act based on 5 principles:-
      – a person is assumed to have capacity
        unless established otherwise
      – a person is not to be treated as unable to
        make a decision unless all practicable
        steps to help him do so have been taken
        without success
      – A person is not to be treated as unable to
        make a decision just because he makes an
        unwise one

Fentons Solicitors LLP a leading UK personal injury firm
www.fentons.co.uk freephone 0800 55 77 88
      – An act done or decision made for or on
        behalf of a person who lacks capacity must
        be done or made in his best interests
      – Before the act is done or decision made
        regard must be had to whether the purpose
        for which it is needed can be achieved in a
        way less restrictive of the person’s rights
        and freedom of action


Fentons Solicitors LLP a leading UK personal injury firm
www.fentons.co.uk freephone 0800 55 77 88
• Certain aspects of the MCA 2005
  incompatible with the ECHR particularly
  Article 5 (the right to liberty) and Article
  8 (right to family life)
• Act amended in 2007 to introduce the
  Deprivation of Liberty Safeguards
  (DOLS)



Fentons Solicitors LLP a leading UK personal injury firm
www.fentons.co.uk freephone 0800 55 77 88
  HUMAN RIGHTS AND MENTAL
         CAPACITY
• Impact of Articles 5 and 8 of the HRA
  together with the DOLS has been huge
• New procedural framework to be
  applied when making crucial decisions
  about an individual who either lacks or
  is thought to lack capacity


Fentons Solicitors LLP a leading UK personal injury firm
www.fentons.co.uk freephone 0800 55 77 88
• Greater significance upon an
  individual’s right to liberty, autonomy
  and that individual’s right to enjoy a life
  together with his close and immediate
  family
• If the procedural framework is not
  followed, and human rights have been
  violated, damages and other remedies
  will be available.

Fentons Solicitors LLP a leading UK personal injury firm
www.fentons.co.uk freephone 0800 55 77 88
             G -v- (1) E & (2) A Local
                 Authority & (3) F
• E suffers from a complex genetic
  condition as a result of which he has a
  severe learning disability
• G is E’s sister
• F is a woman with whom E resided for
  over 10 years initially as his foster carer
  and subsequently under an adult
  placement
Fentons Solicitors LLP a leading UK personal injury firm
www.fentons.co.uk freephone 0800 55 77 88
• E removed from F’s care by the Local
  Authority in April 2009
• Moved to an emergency respite unit –
  the V Unit
• Moved to a residential housing unit, Z
  Road, in June 2009
• No real consideration of any issues
  regarding deprivation of liberty
• F not involved in the decision to remove
  E from her care
Fentons Solicitors LLP a leading UK personal injury firm
www.fentons.co.uk freephone 0800 55 77 88
• G applied to the court for a declaration as to:-
      – Whether E has capacity to make decisions
            • Answer: No
      – Whether it is in E’s best interests to return to live
        with F or whether he should be cared for in a
        residential care home
            • Answer: Having initially decided that it was in E’s best
              interests to remain at Z Road, at a final hearing the
              Judge ruled that it was in E’s best interests to reside with
              F
      – What contact provision should be made for G and
        F if E does not return home
            • Answer: It was in E’s best interests to have regular
              contact with G

Fentons Solicitors LLP a leading UK personal injury firm
www.fentons.co.uk freephone 0800 55 77 88
      – Whether the local authority unlawfully
        detained E in breach of Article 5 ECHR
        and/or the DOLS
            • Answer: Yes
      – Whether the local authority interfered with
        E’s right to a home and or to family life
        under Article 8 of the ECHR
            • Answer: Yes



Fentons Solicitors LLP a leading UK personal injury firm
www.fentons.co.uk freephone 0800 55 77 88
  GUIDANCE IN THE CASE OF G
             (1)
• When determining whether there is a
  deprivation of liberty the following 3
  conditions must be satisfied:-
      – A person is confined in a particular restricted
        space for a not negligible time – objective test
      – The person has not validly consented to the
        confinement – subjective test
      – The deprivation of liberty must be one for which
        the State is responsible

Fentons Solicitors LLP a leading UK personal injury firm
www.fentons.co.uk freephone 0800 55 77 88
  GUIDANCE IN THE CASE OF G
             (2)
• Under the MCA 2005 the managing authority
  of a hospital or care home may deprive a
  person of his liberty by detaining him if:
      – that person is detained in the hospital/home for
        the purpose of being given care or treatment
      – that authorisation for the detention has been
        given; and
      – that the authorisation relates to the hospital/home
        where he is detained.

Fentons Solicitors LLP a leading UK personal injury firm
www.fentons.co.uk freephone 0800 55 77 88
  GUIDANCE IN THE CASE OF G
             (3)
• The MCA 2005 sets out the procedure for
  obtaining authorisations
• It is a cardinal feature of Article 5 ECHR that:-
      – No one shall be deprived of his liberty save…in
        accordance with a procedure prescribed by law
• In the absence of any authorisation or any
  Order of the Court under the MCA 2005,
  there will be an unlawful deprivation of liberty

Fentons Solicitors LLP a leading UK personal injury firm
www.fentons.co.uk freephone 0800 55 77 88
  GUIDANCE IN THE CASE OF G
             (4)
• Article 8 ECHR gives the families of incapacitated
  adults:-
      – Substantive protection against any inappropriate interference
        with their family life; and
      – Procedural safeguards including the involvement of
        carers/family in the decision-making process to a degree
        sufficient to protect the families’ interests.
• If the family have not been so involved, there will
  have been a failure to respect the family life of the
  incapacitated adult and the carer/family


Fentons Solicitors LLP a leading UK personal injury firm
www.fentons.co.uk freephone 0800 55 77 88
  GUIDANCE IN THE CASE OF G
             (5)
• The importance of the best interests
  analysis in ensuring that all relevant
  matters are considered was highlighted.




Fentons Solicitors LLP a leading UK personal injury firm
www.fentons.co.uk freephone 0800 55 77 88

								
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