G v E & Ors (Rev 1)

On a renewed application for permission to appeal in a deprivation-of-liberty case, permission should be granted where an arguable legal issue raises an important matter of principle and requires authoritative guidance, even though the underlying discretionary decision is not challenged. Permission may also be granted on a weaker ground where consideration would provide useful guidance in other cases. A general complaint about delay, without an arguable independent ground of appeal, does not justify permission. The urgency and prospective length of an appeal should be managed proportionately so that it does not prejudice a pending final hearing.

G sought permission to appeal Baker J’s judgment in the Court of Protection concerning E, a 19-year-old man with severe learning disability who lacked capacity. Baker J had decided that E should remain at Z Road pending the final hearing. He had found that the circumstances of E’s removal breached Article 8 and that the placements involved unlawful deprivations of liberty in breach of Article 5: [2010] EWHC 621 (Fam).

Permission had previously been refused on paper. On renewal, the Court of Appeal considered grounds concerning the statutory power to authorise a deprivation of liberty, the interim order made by Ryder J, alleged non-compliance with the regulatory regime at Z Road, Article 8, and procedural delay under Articles 6 and 8.

1. Permission granted in part. The Court of Appeal granted permission on grounds 1, 2, 4 and 5, under rule 173(1)(a) or (b) of the Court of Protection Rules 2007. Permission was refused on ground 3, the alleged failure to deal with the proceedings speedily.
2. The first ground raised an important question of principle. The court would consider whether an order under section 16 of the Mental Capacity Act 2005 could have the effect of depriving a person of liberty unless the court was satisfied that the person’s condition warranted compulsory confinement. The underlying discretionary assessment was not challenged; the alleged error was one of law.
3. The question engaged the Strasbourg approach in Winterwerp v The Netherlands and the reasoning adopted in Re PS (Incapacitated or Vulnerable Adult). The court considered that the factual basis on which permission had previously been refused might not be sustainable, and that definitive guidance was desirable.
4. Ground 2 concerned the interim order made by Ryder J. Although the court was sceptical about its arguability, it granted permission because it was desirable for the Court of Appeal to consider the issue.
5. Ground 4 concerned the alleged illegality of placement at Z Road through non-compliance with the relevant regulatory regime. The court was sceptical about the substance of the point but considered it desirable that it be examined.
6. Ground 5 concerned Article 8. Although the court initially doubted that it added materially to the Article 5 arguments, it concluded that consideration could assist in giving comprehensive guidance in difficult deprivation-of-liberty cases.
7. The appeal should be listed urgently and dealt with in one day, with concise written and oral submissions and minimum representation where appropriate. Baker J was invited to consider directions that would prevent the appeal causing the July final hearing to become abortive, while retaining complete discretion over those directions.

• Court of Appeal (Civil Division): on 4 May 2010, permission to appeal was granted on grounds 1, 2, 4 and 5, and refused on ground 3. The application had previously been dismissed on the papers by Arden LJ on 21 April 2010.
• Court of Protection: Baker J gave judgment and made an order on 26 March 2010: [2010] EWHC 621 (Fam).