G v E & Ors

Mental Capacity Act 2005 and its Deprivation of Liberty Safeguards provide an Article 5-compliant procedure for depriving an incapacitated adult of liberty. Article 5 safeguards apply within, rather than as a separate preliminary threshold to, the court’s best-interests assessment. The court must consider whether deprivation is appropriate, necessary, proportionate and no more restrictive than required.

For an incapacitated adult who is not mentally ill, credible evidence from a suitably qualified expert may establish incapacity. Article 5 does not require psychiatric evidence in every case. A Court of Protection order under the statutory regime may authorise a future deprivation of liberty, but cannot retrospectively make an earlier unlawful deprivation lawful.

E, a 19-year-old man with profound learning difficulties arising from tuberous sclerosis, lacked capacity to decide where he should live. A local authority removed him from his long-term carer without prior court authority. Jonathan Baker J held that the initial removal breached E’s Article 5 and Article 8 rights, but that interim Court of Protection orders subsequently made his residence lawful. He rejected the submission that Article 5 imposed a separate threshold before the court could decide E’s best interests.

G appealed from the interim decision of the Court of Protection, [2010] EWHC 621. The central issue was whether Article 5 required distinct threshold conditions, including psychiatric evidence that E’s condition warranted detention, before the court could authorise deprivation of liberty under the Mental Capacity Act 2005.

Disposition

1. The court unanimously dismissed the appeal. The judge had correctly held that the statutory regime under the Mental Capacity Act 2005, including the Deprivation of Liberty Safeguards, was compatible with Article 5 of the European Convention on Human Rights and remedied the procedural defect identified in HL v United Kingdom, (2004) 40 EHRR 761.

2. Article 5 safeguards against arbitrary detention apply to persons who lack capacity. However, Article 5 does not impose conditions which must be determined as a separate preliminary threshold before the court conducts the statutory best-interests assessment. The requirements of Article 5 are reflected within that assessment, including the need to consider whether a less restrictive course can achieve the purpose.

3. The principles derived from Winterwerp v Netherlands, (1979) 2 EHRR 387, did not require psychiatric evidence in this case. The Strasbourg authorities largely concerned mental illness and detention in psychiatric hospitals. An adult with learning difficulties who is not mentally ill may be shown to lack capacity by credible evidence from an appropriate expert, such as a psychologist or paediatrician. The justification for detention in a capacity case is ultimately a judicial decision made in the person’s best interests, not a medical decision.

4. An interim personal-welfare order made under sections 16 and 48 could authorise a prospective deprivation of liberty. Ryder J’s consent order was valid and, through section 4A, supplied a procedure prescribed by law for E’s subsequent residence. The absence of evidence or findings did not invalidate an order made by agreement between represented parties. It did not retrospectively validate the earlier unlawful removal.

5. The judge’s careful best-interests evaluation disclosed no appellate error. An appellate court could not interfere merely because it might itself have reached a different conclusion; it had to be shown that the judge had plainly reached the wrong answer. The Article 8 point was academic and no finding was made on it.

• Court of Appeal (Civil Division) — dismissed G’s appeal and upheld the statutory best-interests approach to the prospective deprivation of E’s liberty.
• Court of Protection — Jonathan Baker J, in [2010] EWHC 621, held that no separate Article 5 threshold preceded the best-interests assessment and made interim residence orders under the Mental Capacity Act 2005.