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Care at home: Article 8 and incapacitated adults

Care at home: Article 8 and incapacitated adults Purpose – This paper aims to review recent cases in the Court of Protection on the issue of article 8 ECHR right to respect for family life and whether it requires a starting point that it is in an incapacitated adult's best interests to be cared from at home. In this context, it examines the role of article 19 UN Convention on the Rights of Persons with Disabilities (UNCRPD) in the article 8 and best interests analysis carried out by the court under s.4 Mental Capacity Act 2005. Design/methodology/approach – The article examines the recent cases of K v. A Local Authority , FM and GM v. A Health Board and recent cases on the status of the UNCRPD in English Law to explore whether the UK's obligations under that convention require there to be a starting point that incapacitated adults should be cared for at home. Findings – The Court of Protection has made it clear that talking in terms of presumptions is unhelpful when it comes to the s.4 MCA 2005 checklist. The broad terms of s.4 require that all relevant circumstances are taken into account which would include any potential infringement of article 8 ECHR. Originality/value – The article identifies an argument that could be used by campaigners and practitioners who advocate for the right for disabled persons to be cared for at home, through an analysis of recent cases. It notes the argument's limitations with respect to incapacitated adults and the application of s.4 Mental Capacity Act 2005. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Social Care and Neurodisability Emerald Publishing

Care at home: Article 8 and incapacitated adults

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Publisher
Emerald Publishing
Copyright
Copyright © 2012 Emerald Group Publishing Limited. All rights reserved.
ISSN
2042-0919
DOI
10.1108/20420911211286588
Publisher site
See Article on Publisher Site

Abstract

Purpose – This paper aims to review recent cases in the Court of Protection on the issue of article 8 ECHR right to respect for family life and whether it requires a starting point that it is in an incapacitated adult's best interests to be cared from at home. In this context, it examines the role of article 19 UN Convention on the Rights of Persons with Disabilities (UNCRPD) in the article 8 and best interests analysis carried out by the court under s.4 Mental Capacity Act 2005. Design/methodology/approach – The article examines the recent cases of K v. A Local Authority , FM and GM v. A Health Board and recent cases on the status of the UNCRPD in English Law to explore whether the UK's obligations under that convention require there to be a starting point that incapacitated adults should be cared for at home. Findings – The Court of Protection has made it clear that talking in terms of presumptions is unhelpful when it comes to the s.4 MCA 2005 checklist. The broad terms of s.4 require that all relevant circumstances are taken into account which would include any potential infringement of article 8 ECHR. Originality/value – The article identifies an argument that could be used by campaigners and practitioners who advocate for the right for disabled persons to be cared for at home, through an analysis of recent cases. It notes the argument's limitations with respect to incapacitated adults and the application of s.4 Mental Capacity Act 2005.

Journal

Social Care and NeurodisabilityEmerald Publishing

Published: Nov 16, 2012

Keywords: England; Legislation; Case law; Law Courts; Home care; Adults; Mental Capacity Act 2005; Article 8 ECHR; Incapacitated adults; Independent living

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