Deprivation of liberty best interests test compatible with human rights law [updated]

G v E and others [2010] EWCA Civ 822 – Read judgment

This post was written with the kind help of Jaime Lindsey

The Court of Appeal has held that a person who lacks mental capacity can be detained if the Court of Protection considers that it is in their best interests, without having to meet additional conditions under Article 5 of the European Convention on Human Rights.

This case was a challenge to the decision of Jonathan Baker J in the Court of Protection and raises issues about the relationship between ECHR Article 5 (right to liberty and security) and the Mental Capacity Act 2005 (MCA). It reinforces the point that it is for the Court to decide what is in an incapacitated patient’s best interests, and that Article 5 imposes no further requirements.

Right to liberty and security

Article 5 provides

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(e) the lawful detention of persons … of unsound mind…

The MCA gives the Court of Protection the power to order the deprivation of liberty of persons of unsound mind, provided that this is in the best interests of the person. Under the MCA, “deprivation of liberty” has the same meaning as under Article 5(1).

In this case the 19-year-old patient, E, suffered from severe learning difficulties. He had been living with F, his former foster carer, for around 10 years but was removed from her care by the Local Authority. The patient’s sister, G, sought declarations from the Court of Protection that E had been detained unlawfully, in breach of Article 5  and/or Article 8 (right to respect for private and family life), and that it was in E’s best interests to return to live with F.

It was accepted by Jonathan Baker J that E had been detained unlawfully (due to a failure to consult F or G, take Court of Protection proceedings or otherwise justify the removal) but any future detention was open to the Court to sanction. The finding by Jonathan Baker J which gave rise to the appeal was “that ECHR Article 5 did not create a “threshold condition” which had to be satisfied in deprivation of liberty cases before the court could go on to consider what was in the best interests of E.” (Sir Nicholas Wall P, who gave the judgment of the Court of Appeal, at paragraph 10)

No additional criteria necessary

The Court of Appeal unanimously agreed with the judge that no additional criteria must be satisfied before the best interests test could be considered by the Court.

The judge had included reference in his judgment to the decision of the ECtHR in Winterwerp v Netherlands (Application 6301/73 (1979 2 EHRR 389)), paraphrasing at paragraph 56 the test therein established to satisfy Article 5(1)(e):

(1) the authority responsible for the deprivation of liberty must establish through objective medical expertise that the person is of unsound mind;

(2) it must be established that the mental disorder is of a kind or degree warranting compulsory confinement;

(3) the validity of continued confinement depends upon the persistence of the mental disorder.

The appellant’s submissions were based on the Bournewood case (HL v United Kingdom Application 45508/09 (2004) 40 EHRR 761) where the ECtHR held that the common law doctrine of necessity did not meet the requirement under ECHR Article 5 that any deprivation of liberty must be carried out in accordance with a procedure prescribed by law. The doctrine of necessity allowed medical treatment to be given to patients unable to consent to treatment because they lacked capacity where it was medically necessary to give treatment. At paragraph 98 of this decision the three Winterwerp conditions were described as minimum conditions to be satisfied when deprivation of liberty of persons of unsound mind was in issue.

However, the Court of Appeal considered that the MCA “effectively plugged the Bournewood gap (Sir Nicholas Wall P at paragraph 25). It provides a comprehensive statutory regime replacing the common law, which sets out the best interests test. This makes the liberty question part of the wider best interests test for the Court to decide when considering sanctioning any deprivation of liberty. Crucially, the statutory regime, unlike the common law, was found to be Article 5 compliant.

Furthermore, the appellant’s submissions were based on cases concerning patients with mental illnesses, which require psychiatric evidence, and not those who lack capacity, which do not necessarily. In cases of mental illness leading to deprivation of liberty, there are clear reasons why psychiatric evidence of the existence and effects of the illness would be needed to justify such deprivation. However, in cases involving patients who lack capacity for reasons other than mental illness, psychiatric evidence will not necessarily be helpful. Learning difficulties often lie outside the sphere of expertise of psychiatrists.

Provided there is credible expert evidence upon which the court can be satisfied that the individual concerned lacks capacity that, in our judgment, is sufficient. (Paragraph 61)

Further, “the justification of detention in a case under MCA 2005 is not a medical decision but a decision for the court, to be made in the best interests of the person whom it is sought to detain.” (Paragraph 64)

Finally, in considering the best interests test, Jonathan Baker J had applied a balancing exercise. The Court of Appeal, citing Cumming Bruce LJ in Clarke-Hunt v Newcombe (1982) 4 FLR 482, emphasised that to overturn a best interest finding, it must plainly be the wrong answer:

I am sitting in the Court of Appeal deciding a quite different question: has it been shown that the judge to whom Parliament has confided the exercise of discretion, plainly got the wrong answer? I emphasize the word “Plainly”. In spite of the efforts of [counsel] the answer to that question clearly must be that the judge has not been shown plainly to have got it wrong. (Paragraph 71)

Accordingly, the appeal was dismissed.

Update 3/8/10: Siobhain Butterworth in the Guardian: “And so we return to the Press Association’s quest to persuade the court of protection to allow the media to name the local authority rebuked in G v E. Thanks to a judgment handed down at the end of last week, it was revealed that Manchester city council was found to have behaved unlawfully when it removed E, a 19-year-old with severe learning disabilities, from the care of a woman who had looked after him for several years within her own family.”

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