Court of Protection, Health & Welfare Specialists
Southerns Court of Protection team are dedicated mental capacity lawyers who support and advise on all aspects of mental capacity.
We frequently act for vulnerable adults, for family members and advocates throughout the different stages of a mental capacity case.
We can act for those approached or appointed as P’s Litigation Friend including Independent Mental Capacity Advocates and Relevant Persons Representatives.
Our Head of Department Rachel Eastham is a member of the Law Society’s Mental Capacity (Welfare) scheme, holding Accredited Legal Representative (“ALR”) status and can be appointed directly to represent P in proceedings. In the absence of a litigation friend, Rachel is regularly approached by the Local Authority or CCG to act as P’s ALR in proceedings. Our solicitors also accept instructions from the Official Solicitor.
What is the Court of Protection?
The Court of Protection decides cases in the best interests of people who lack the mental capacity to make their own decisions. The Mental Capacity Act 2005 protects people in these circumstances.
The law around whether a person has capacity is very complex and it is therefore important that specialist legal advice is sought if this disputed or there is uncertainty as to whether someone lacks capacity.
The work of the Court of Protection is split into two areas Property & Affairs and Health & Welfare. The court determines issues including;
- finances and property
- a person’s medical treatment
- an individuals care arrangements
- the type and amount of contact they should have with their family or others
Protecting Health & Welfare
Our specialist team has a wide range of experience and handles a variety of matters including;
- analysing and advising on mental capacity assessments and the validity of the same
- challenging a mental capacity assessment, including the instruction of an expert to prepare an independent capacity assessment
- cases where a person has regained capacity to make decisions or experiences fluctuating capacity
- those cases where the individual is unable to make decisions due to a lack of capacity
- best interests decisions including those relating to residence, care, contact and treatment
- making or responding to a Court of Protection application
- advising on whether a persons care arrangements amount to a deprivation of liberty
- corresponding with the local authority / supervisory body where it is apparent that there is an unauthorised deprivation of liberty
- cases involving the Deprivation of Liberty Safeguards (DoLS) and challenging an authorisation, where vulnerable adults are placed in a hospital or care home as it is considered to be in their best interests and to protect them from harm
- representing individuals who lack capacity and who live in their own home or supported living environments in circumstances that deprive them of their liberty (including acting as P’s rule 1.2 representative)
- cases involving a person’s capacity to consent to sexual relations and marriage
- cases involving a person’s capacity to consent to medical treatments such as sterilisation
- cases relating to urgent and serious medical treatment where there is a fine balance or difference of opinion between the benefits, burdens and risks and where a proposed course of action may have serious consequences for the patient
- hospital discharge cases where an individual is detained under the Mental Health Act and/or staying in hospital as an informal patient and the proposed discharge pathway indicates a change of accommodation or placement in P’s best interests.
- post discharge cases involving the complex overlap between mental health law, where a person has previously been sectioned and is subject to both a community treatment order or guardianship and a deprivation of their liberty following discharge from hospital
How we can help
We can act for you, or someone you care for.
We can act for those appointed as Litigation Friend including Independent Mental Capacity Advocates and Relevant Persons Representatives.
We are often instructed by the Official Solicitor.
Legal Aid & Funding
As legal aid contract holders we are able to complete an eligibility assessment and provide you with advice regarding the availability of legal aid under our contract with the Legal Aid Agency.
Non-means-tested Legal Aid is available on behalf of P in challenges brought under section 21a of the Mental Capacity Act 2005. These are cases in relation to Deprivation of Liberty Safeguards (DoLS)
In other welfare cases, eligibility for legal aid is subject to a means and merits assessment. Please contact us to discuss eligibility further. Alternatively please refer to the Legal Aid Agency’s eligibility check at https://www.gov.uk/check-legal-aid
We offer free no obligation initial telephone consultations and where legal aid is not available a range of fixed fee and private fee / reduced fee options. Please ask us for further details.
As Mental Capacity and Mental Health specialists we are able to provide advice and experience across a full range of issues. Our blended expertise means we are able to deliver a cohesive service, giving you confidence in all types of mental capacity cases.
We are offering initial consultations via pre arranged appointment at our Cooper House offices, telephone or video call. If you would like to call a member of the team to discuss in detail please contact us on 01282 422711. Alternatively send any question through to the team via email