Deprivation of liberty

The Deprivation of Liberty safeguards

In the case of HL v United Kingdom, also known as the Bournewood case, the European Court of Human Rights held that a procedure prescribed by law must be followed where a person with mental disorder is cared for or given treatment in conditions which amount to a deprivation of their liberty.

As a result of this case a number of provisions were inserted into the Mental Capacity Act 2005 (MCA 2005) by the Mental Health Act 2007 (MHA 2007), and came into force on 1 April 2009. In particular, the addition of Schedule A1 to MCA 2005 introduced what has become known as the Deprivation of Liberty Safeguards regime or DOLS regime.

The new powers given by MHA 2007 to the Court of Protection and the DOLS regime were introduced in order to provide appropriate legal protection for incapacitated individuals who are or may be deprived of their liberty outside of the framework of the Mental Health Act 1983 (MeHA 1983).

Statutory guidance on the DOLS regime has been issued although this guidance

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High Court judgment demonstrates usefulness of section 423 of the Insolvency Act 1986 in Schedule 1 claims (Re P (A Child) (Financial Provision))

Family analysis: In this Schedule 1 case the mother received, for her son’s benefit: a housing fund of nearly £1m (the property to be held on trust); child maintenance (including ‘HECSA’/carer’s allowance) until completion of his first degree; and lump sums in respect of his capital needs and her own substantial liabilities (chiefly relating to her unpaid legal fees). The father (whose resources could be measured in the ‘tens of millions of pounds’) had sought to prejudice the mother’s claims via transferring his valuable shares to family members, who then transferred the same into a trust structure (settled under Czech law). A further onwards transfer was then made of the trust’s assets into a Liechtenstein foundation. Inferences were drawn by the court in respect of the level of the father’s wealth, and specifically as to the value of the transferred shares. Detailed findings were made against him in respect of the identified transactions, which had been the focus of the mother’s section 423 application. Although a section 423(2) order was not actually made, the application was adjourned pending the father’s compliance with the award, with security in the sum of £600,000 also ordered, alongside a continuation of the freezing orders made earlier in the proceedings. David Wilkinson, solicitor at Slater Heelis, considers the issues.

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