Changing times

Many wills & probate lawyers would regard deprivation of liberty issues as being solely the concern of lawyers advising on human rights. In fact, the issues impact on many older and vulnerable people, their families and their carers. They are also generating considerable work for local authority legal teams and for the Court of Protection (CoP). The reasons for the high level of activity are twofold—chiefly the developing case law and, secondly, some poorly-considered legislation.

The underlying legal rights are those enshrined in Art 5 of the European Convention on Human Rights (the convention), which states: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.” Clause 4 requires that “everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided