G v E & Ors

Under the Mental Capacity Act 2005, the only threshold for the Court of Protection’s welfare jurisdiction is that the person lacks capacity in relation to the relevant welfare matter. There is no separate requirement to establish that the person’s condition warrants compulsory confinement before a deprivation of liberty can be authorised.

Any proposed deprivation must be assessed within the best-interests decision. The court must consider whether the purpose can be achieved in a less restrictive way and must weigh all relevant circumstances, including family life, welfare, risk and the likely consequences of a move. Unlawful past detention does not automatically require an immediate return to a previous placement.

G, the sister of E, applied to the Court of Protection concerning E, a 19-year-old man with tuberous sclerosis and severe learning disability. E had lived with F, initially as a foster carer and later as an adult placement carer, for many years before the local authority removed him to respite care and then to supported accommodation at Z Road following safeguarding concerns.

The application raised questions about E’s capacity, the lawfulness of his detention, his rights under Articles 5 and 8 of the Convention, the admissibility and weight of his statements, and his interim best interests. The court had to decide whether E should remain at Z Road pending the final hearing or return to F.

1. Capacity and deprivation of liberty. E lacked capacity to decide where he should live. His placements at the V Unit and Z Road amounted to deprivations of liberty because staff exercised complete control over his care and movements, and he was not free to leave. The local authority’s failure to obtain authorisation under Schedule A1 of the Mental Capacity Act 2005, or an order under sections 16 and 48, made the detention unlawful up to 8 December 2009.
2. Article 8. E and F had a family relationship for Convention purposes. The local authority failed to carry out an adequate welfare analysis, failed properly to involve F in the decision-making process, and restricted contact between them for several months. Those failures seriously breached E’s Article 8 rights.
3. No separate confinement threshold. The MCA does not require the court first to find that E’s condition warranted compulsory confinement. The only threshold for section 16 jurisdiction was lack of capacity in relation to a matter concerning personal welfare. Whether a deprivation was appropriate and proportionate fell to be determined as part of the best-interests assessment, applying section 1(6).
4. The court could make a future section 16 or section 48 order even though the local authority had unlawfully detained E before the application. The past unlawfulness did not automatically require E’s return to F. Ryder J’s order of 8 December 2009 authorised E’s continuing deprivation of liberty pending the interim hearing.
5. The court declined to determine finally whether Z Road was a “care home” or whether the purported tenancy was valid. Those issues required representations from X Ltd and potentially the Care Quality Commission. They did not materially affect the interim best-interests decision.
6. Statements made by E were admissible under rule 95(d) of the Court of Protection Rules 2007, read with section 51(2)(i) of the MCA, notwithstanding section 5 of the Civil Evidence Act 1995. However, because of E’s limited communication and the absence of corroboration, no weight was attached to statements suggesting ill-treatment.
7. The court conducted a comprehensive best-interests balancing exercise. Family life, E’s attachment to F, the less restrictive nature of a family placement and F’s dedication favoured return. His recent stability and progress at Z Road, the risk of challenging behaviour, the need for training and the risk of a further disruptive move favoured remaining there.
8. On balance, E’s best interests required him to remain at Z Road until the final hearing. The local authority was directed to arrange contact with F and G, conduct a risk assessment of a possible return, provide training for F and prepare for a review hearing.