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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Private Client analysis: This case considered the meaning of 'relevant property' under the settlements regime of the Inheritance Tax Act 1984 (IHTA 1984) and, in particular, the time at which this definition is to be tested. The question arose as to whether the trustees of an offshore trust established by a non-UK domiciled settlor were subject to the UK settlements regime in respect of property added to the trust after the settlor became deemed domiciled in the UK, or whether they were exempt from such charges as the trust consisted solely of excluded property. The First-tier Tribunal (FTT) held that whether trust property is excluded property is based on the status of the trust at the time that it was established, not at the time that the property in question was added to the settlement. As a result, the trust in this case did consist solely of excluded property and no inheritance tax (IHT) charges arose as a result of either the ten-year anniversary or capital distributions. The FTT was also asked to consider whether their jurisdiction was appellate, or supervisory only. The FTT held that, while their jurisdiction was supervisory, the questions raised by the trustees were relevant in establishing whether HMRC had acted reasonably and that the outcome (ie that the paid IHT should be refunded and that no further IHT was due) would be the same in either case. Written by Katherine Willmott, senior associate solicitor at Foot Anstey LLP.