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Published On: September 25, 2017 | Blog | 0 comments

Mental Incapacity and Loss of Liberty

When a person loses mental capacity as a result of an illness or disability such as a mental health problem, dementia or a learning disability they may be deemed to be unable to do one or more of the following;

  • understand information given to them about a particular decision;
  • retain that information long enough to be able to make the decision;
  • weigh up the information available to make the decision or communicate their decision.

If you lose your mental capacity at the time a decision needs to be made, and you have not appointment an attorney (or they can no longer act for you), then the Court of Protection can appoint someone to be your deputy.

Although many individuals who lose mental capacity may welcome the support and decision making by others on their behalf; it is also possible that some individuals are resistant to the idea of someone else managing their affairs. They may feel that their independence has been compromised, particularly when they are able to make some decisions about their life, but not others.

This was explored in the case of DM v Y City Council.

Mr DM was a 69 year old man who had a long history of alcoholism and a longstanding diagnosis of Korsakoff’s syndrome.  He neglected himself to a significant degree necessitating admission to hospital and was discharged to a ‘dry’ care home, apparently with his agreement.  By the time of the proceedings before the court, he had been residing in a care home for 5 years without access to alcohol.  For the previous 2 years he had been subject to 24 hour one-to-one supervision and was not allowed to access the community when he chose following an incident when he purchased alcohol.  DM had no relatives and was reported to have only one friend, another resident of the care home. DM wished to leave the care home and to consume alcohol and brought proceedings challenging his deprivation of liberty under section 21A Mental Capacity Act 2005.

Bodey J decided that it was not in DM’s best interests to move to another care home where the consumption of alcohol was permitted, despite this being DM’s expressed wish and his acceptance of the risk that it would shorten his life, noting that ‘everybody has to die sometime’. There was medical evidence that if DM resumed drinking he would become very unwell, as he had advanced liver disease, and had a life expectancy of about 7 years if not drinking and 3 years if drinking even a relatively modest amount.  DM had no recollection of the events that had led to his admission to the care home.

The court’s decision was described as ‘finely balanced’ and the judge admitted that on first reading the papers his view was that DM should be allowed to move to a care home where he could consume alcohol.  In the end, the judge concluded that DM should remain in the care home.

The case illustrates that when an individual who lacks capacity is subject to social and legal interference, their wishes, may not be adhered too, if those wishes are not in their best interest. It is evident from this case that, when a person does lack mental capacity, a decision will be made in their best interests, even if they do not desire it.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

David Wedgwood

Head of Civil Litigation Joint Head of Court of Protection

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