covid banner

Care home briefing 95 – Court of Protection confirms jurisdiction to award damages for human rights breaches

The Court of Protection confirms jurisdiction to award damages for human rights breaches Legal issues regarding residents who lack capacity are dealt with by the Court of Protection pursuant to the Mental Capacity Act 2005.

However, there may be cases where alternative legal remedies, such as under the Human Rights Act, arise and the Court has recently considered the extent to which the Court of Protection can also award damages under that legislation.

The facts

In a recent case[1] an issue arose following the admission to hospital of an adult with severe disabilities. He lacked capacity to make decisions about his residence, contact and other personal welfare matters.

The adult had been living with his mother before being admitted to hospital. However, when discharged, rather than being sent back to his mother, he was transferred to a local authority placement, the details of which were not provided to his mother who brought proceedings regarding this in the Court of Protection. Part of her claim included a claim pursuant to Article 5 of the European Convention on Human Rights[2] and Article 8 of the Convention[3]. A preliminary issue was taken as to whether the Court of Protection had the jurisdiction to deal with claims for damages under the Human Rights Act for a breach of the Convention.

Court decision

The Court of Protection confirmed that it had the power to make declarations under the Human Rights Act and also to make awards of damages. It confirmed that it had the same jurisdiction and authority as the High Court.


The Mental Capacity Act was intended to provide a comprehensive approach to dealing with the affairs of individuals who lack capacity. On occasion, human rights issues may also arise and this case makes it plain that the Court of Protection can also award damages under the human rights legislation where this is appropriate. Where difficult issues arise that may engage human rights
issues, operators should be aware of the potential for damages claims.

Andrew Parsons
© RadcliffesLeBrasseur

[1] Y(AF) v A local authority [2010] EWHC 2770(FAM)
[2] The right to liberty
[3] The right to respect for private and family life
Care Home Briefing April 2011: Court Explains New Offence of Neglect

The Court of Appeal[1] has explained how the criminal offence[2] of ill treating or wilfully neglecting a person who lacks capacity is to be prosecuted. The difficulty with the offence is that the Mental Capacity Act makes it plain that capacity is both time and decision specific. However, the offence refers simply to “a person who lacks capacity” which suggests a general lack of capacity. This seems a conflicting approach however, the Court of Appeal have held that the jury is to consider whether an individual who is subject to ill treatment or neglect is able to make decisions about their care. If they are unable through a lack of capacity to make those decisions, then ill treatment or neglect of them may constitute an offence under the Act.
[1] R v Dunn [2010] EWCA Crim 2935
[2] Under the Mental Capacity Act 2005


This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

Briefing tags