Re P (2010) COP 23/12/10 (Mostyn J)
There was effectively a presumption against deprivation of liberty (pursuant to MCA 2005 s1(6)) and, on the facts, the balance tilted in favour of P returning home pending a final hearing at which full evidence could be considered. [Summary based on counsel's case report.]
The following text is reproduced, with permission, from 39 Essex St's January 2011 update:
Challenge to a DOLS standard authorisation
Victoria Butler-Cole appeared for P’s daughter in a challenge to a standard authorisation under s.21A MCA 2005. The case concerned P, an elderly gentleman with moderate dementia, who had been kept against his wishes in a care home since early November 2010. The local authority had prevented him returning home after a stay in hospital due to concerns raised by P’s general practitioner.
At an interim hearing before Mostyn J on 23 December 2010, it was held that P should return home notwithstanding that it was accepted that better care would be provided in the care home, that there were risks to P of returning home, and in the face of opposition from the local authority and the Official Solicitor. The Official Solicitor did not express a view as to the merits of the original grounds of challenge to the SA but argued that P ought to remain in the care home until, at the very least, better evidence was available to satisfy him and the Court that it was in P 's best interests to return home. The judge accepted evidence from P’s family that P was ‘desperately unhappy’ and wanted to leave the care home. He held that there was effectively a presumption against deprivation of liberty (pursuant to s.1(6) MCA 2005), and on the facts, the balance tilted in favour of P returning home pending a final hearing at which full evidence could be considered.
No Bailii link (no transcript)