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

23 July 2010 by

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.”

Read more:

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: