Court of Appeal rules "best interests" regime compatible with ECHR

The Mental Capacity Act 2005 regime under which the Court of Protection can detain an incapacitated person if it considers the move to be in the individual’s best interests is compatible with the European Convention on Human Rights, the Court of Appeal has ruled.

In G v E & Ors [2010] EWCA Civ 822, E was a 19-year-old man who – it was common ground – lacked the capacity to make decisions about his own life. For a ten-year period until April 2009, when he was removed by the local authority, E had resided with F, who was initially his foster carer under the Children Act 1989. After his 18th birthday, E lived with F under an adult placement.

The local authority then removed E from F’s care, but without seeking the consent of F or G (E’s sister) or taking proceedings in the Court of Protection to justify the removal.

The sister then sought declarations that the local authority had unlawfully detained E in breach of Article 5 of the ECHR (the Right to Liberty and Security) and/or the Deprivation of Liberty Safeguards under the MCA 2005 and/or Article 8 of the ECHR (the Right to Respect for Private and Family Life). She also sought a declaration that it was in E’s best interests to return to live with F.

The judge at first instance, Jonathan Baker J, ruled that the local authority had deprived E of his liberty under Article 5 of the ECHR and MCA 2005 in removing him, contrary to the wishes of his carer and sister. The judge also decided that removal from F’s care breached E’s rights under Article 8 of the ECHR. Neither decision was controversial.

The judge then ruled that:

• an interim "best interests" declaration made by Ryder J on 8 December 2009 rendered E's detention at his then current address lawful;
• 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;
• in making an order in E's best interests the court could authorise a deprivation of liberty under sections 16 and 48 of MCA 2005; and
• on the facts, albeit on a fine balance, it was in E's best interests to remain where he was, and not, in the interim, to return to F's care.

It was the second point about “threshold conditions” that was deemed the critical issue by the Court of Appeal, with the President of the Family Division, Sir Nicholas Wall, saying it is “plainly an issue of some considerable legal and practical importance, both for local authorities and for professionals dealing with the affairs of those who are said to lack capacity under the MCA 2005”.

Giving the lead judgement, the President said the court was of the opinion that MCA 2005 generally and the DOLS in particular plugged the Bournewood gap and were ECHR Article 5 compliant. “It is our view that MCA 2005 provides a ‘procedure prescribed by law’ for depriving [persons lacking capacity] of their liberty,” he ruled.

The judge added: “We do not think that ECHR Article 5 imposes any threshold conditions which have to be satisfied before a best interests assessment under DOLS can be carried out.”

The MCA 2005 “plainly does” embrace the principles set out in ECHR Article 5, Sir Nicholas suggested.

Following a plea from Jonathan Baker J for judges in the Family Division to be given additional resources to handle these complex cases, Sir Nicholas also recommended that similar applications should be listed urgently before the President of the Family Division, “who will be able to deal swiftly with any aspects of it which will not brook delay and who, if he is unable to retain the case himself, will be able to allocate it appropriately”.