#57 The legal framework that underpins Lasting Power of Attorney and Deprivation of Liberty

In this episode it is my pleasure to talk with Victoria Butler-Cole KC, a barrister at 39 Essex Chambers. Tor explains the terminology and legal framework that underpin the Mental Capacity Act, Lasting Powers of Attorney and Deprivation of Liberty Safeguards and reflects on Anna and Mary’sCourt of Protection experience. 

This episode is the third in a series exploring a family’s experience at the Court of Protection and what we can learn from it. In the first episode I talk with Anna about her experience at the Court of Protection, I hear how Anna and her family were unprepared for the experience and we explore the tension between deprivation of liberty and appropriate care and supervision of a person. In the second episode I talk with Mary about how it felt as a daughter to experience the Court of Protection, and what she learned about being an attorney for her Mum. You can access both of these episodes through the website www.speakforme.co.uk

Key messages from guest

• Tor explains how it is important to raise awareness about the role of the Court of Protection.

• Tor sets out the 2005 Mental Capacity Act and how it formalises decision making for another person.

• The Mental Capacity Act states that it is not possible for a person to take on the role of decision. making for another person once they lose capacity. To set out in advance who can speak for you a Lasting Power of Attorney is required.

• Fluctuating capacity is explored by Tor.

• Tor explains the subjective and objective components of Best Interests decision making. 

• The value of a statement of wishes and preferences is explained by Tor.

• The Health and Welfare element of a Lasting Power of Attorney is explored by Tor.

• A system of monitoring is in place to ensure that an attorney does what they ought to do.

• Tor explains the background to ensuring protection of vulnerable people unable to make their own decisions and who are subject to a high level of care and supervision.

• Tor explains how a family may find themselves in the Court of Protection

• Deprivation of Liberty is explained in a stepwise approach.

• Arrangements to improve a person’s life are a key part of the Court of Protection.

• A Relevant Person’s Representative (RPR) is explained by Tor

• The role of the Official Solicitor is explained by Tor

  
  

Resource specific to this podcast

• See Mental Capacity Act legislation: Mental Capacity Act 2005 

• Read about Lasting Power of Attorney on the GOV.UK website: GOV.UK Lasting Power of Attorney 

• Lasting Power of Attorney FAQs: Speak For Me Lasting Power of Attorney FAQs 

• See section 4 of the Mental Capacity Act for Best Interests decision making

• Read the A toolkit for doctors working in England and Wales Best interests decision- making for adults who lack capacity 

• Social Care Institute for Excellence (SCIE) Deprivation of Liberty Safeguards (DoLS) at a glance

• Find out about Deprivation of liberty safeguards: resources  

• Age UK: Factsheet 62 Deprivation of Liberty Safeguards March 2023 

• Find out more about the European Convention on Human Rights - Article 5: Guide on Article 5 of the European Convention on Human Rights 

• Find out more about Deprivation of Liberty Safeguards from the GOV.UK website

• Find out more about a Relevant Person’s Representative: What is a Relevant Person’s Representative (RPR)? 

• Find out more about the role of the Official Solicitor 

• Find out more about being a Litigant in Person 

• Find out more about Compassion in Dying 

• Find out more about the work of the Open Justice Court of Protection Project

Resource for Anna and Mary’s episodes referred to by Tor

• Listen to Anna’s podcast, the first in this series focusing on Lasting Power of Attorney and Deprivation of Liberty Safeguards: Lasting Power of Attorney, Deprivation of Liberty Safeguards and the Court of Protection - a family's experience

• Listen to Mary’s podcast, the second in this  series focusing on Lasting Power of Attorney and Deprivation of Liberty Safeguards: The Court of Protection: Experience of a daughter

• Read Mary’s sister’s  blog for the Open Justice Court of Protection Project: ‘Deprived of her liberty’: My experience of the court procedure for my mum 

• Read Celia Kitzinger’s blog post for the Open Justice Court of Protection Project exploring Anna’s Mum’s hearing: A ‘bog standard’ s.21A case: Anna’s mum

• Find out more about the Deprivation of Liberty Safeguards for Families Edge training that Anna, Mary’s sister, attended

Bio

Victoria Butler-Cole KC is a barrister at 39 Essex Chambers. She specialises in health and social care law, in particular the Court of Protection.  She is a member of the Nuffield Council on Bioethics and an advisor to the Open Justice Court of Protection Project.