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Human Rights and People Lacking Capacity: Theoretical and Practical Problems

Explore the theoretical and practical issues surrounding the realization of rights for individuals without capacity. Analyze the case law framework and possible legal responses like judicial review, best interests application, and ECHR remedies. Also, discuss the relevance of supported decision-making, the role of carers, and the practical and emotional complexities involved. Examine substantive safeguards and conflicting laws, including the rights of families and the balance between the Mental Capacity Act and human rights safeguards.

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Human Rights and People Lacking Capacity: Theoretical and Practical Problems

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  1. Human Rights and People Lacking Capacity: Theoretical and Practical Problems Peter Bartlett Nottinghamshire Healthcare NHS Trust Professor of Mental Health Law

  2. The Question ‘Rights’ generally presuppose competent subject. How do we make rights real for people without capacity?

  3. Case framework HL v United Kingdom (2005) 40 EHRR 32. [Bournewood]

  4. Possible Legal Responses • Judicial review of informal admission? • Best Interests application? • Habeas Corpus • Wrongful confinement • ECHR application

  5. ECHR remedy Wins - • Right to be informed of reasons for detention • Right to challenge detention before independent tribunal What good are these to HL?

  6. How do we make rights real? • Supported decision-making? • Carers - professional or family • Ability at making decisions? • Complex practical and emotional space • Cases arise from conflict • Where arise, PLC lost in shuffle • Where no conflict, no scrutiny

  7. Safeguards • Substantive safeguards: what do they look like? • Under ECHR: no degrees of detention • Rights in the community • Process: automatic consideration? Practical problems!

  8. Conflicting Law • Rights of families • supportive approach of Mental Capacity Act versus safeguards to human rights.

  9. Process but no result?

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