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Judge says individuals must be able to participate in Court of Protection decisions

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A High Court Judge has said that vulnerable people must always have access to independent legal representation in hearings concerning their personal liberty.

In a very significant judgment earlier this month, Mr Justice Charles, who is the vice president of the Court of Protection, said it was the responsibility of the Government to ensure that everyone had the necessary representation when their case was heard in court.

For the past couple of years, the threshold for cases to be heard in the Court of Protection has been lowered, but the increased workload has led to a number of instances where no appropriate representative could be found.

Mr Justice Charles ruled that all such cases in future should be adjourned until a “workable solution” could be reached.

The president of the Law Society, Jonathan Smithers, welcomed the judgment and said it was crucial that someone who was deemed to lack mental capacity had the necessary support.

“When a vulnerable person doesn’t have friends or family to represent them during a decision to restrict their liberty, it is vital that person is able to participate in the decision-making process,” he said.

“If this is not possible then they must have a legal representative to protect their rights as well as their health and general welfare.

“We recognise that the Court of Protection, local authority, and government budgets are stretched. But those who are least able to defend themselves should not be sacrificed on the altar of austerity.”

At Lester Morrill, our specialist Court of Protection solicitors are experienced in working with vulnerable individuals and their families, friends and care teams to ensure the best possible outcome. We currently manage cases involving private clients, solicitors, local authorities, referrals from the court and case managers. We also advise on matters relating to health and welfare, receiving referrals from family members and advocates. Please contact our team for further information.

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