The judge was right to reject the appellant's submission that Article 5 places distinct threshold conditions which have to be satisfied before a person lacking capacity can be detained in his best interests under the MCA 2005. The MCA generally, and the DOLS in particular, plug the Bournewood gap and are Article 5 compliant.
G v E in the Court of Appeal
This was the latest instalment in the G v E case – a 19 year old man with a genetic condition causing a learning disability, who was removed from his long term foster carer family by the Local Authority due to safeguarding concerns. He was put into a residential placement, without capacity to consent to this, in circumstances that were a deprivation of his liberty, and with no due legal process, in particular without using the Deprivation of Liberty Safeguards.
The interim judgment at first instance (G v E  EWHC 621 (Fam), Baker J) in March 2010 had held that:
It also raised potentially significant issues about whether DOLS could or should have been used to cover the circumstances of E’s placement, which was not a registered care home, but purported to be a supported living arrangement of a 24 hour care package provided to E as a tenancy holder, when in fact the tenancy may have been no more than a sham. No final decision was made on this point pending a final hearing in July (listed before Baker J again, from 19 July 2010), but it seems to suggest that DOLS may be held to apply more widely than registered care homes only.
In the meantime, the case has been to the Court of Appeal on one aspect of Baker J’s initial judgment – whether he was right that there was no need for E’s mental disorder to be of a kind or degree that warranted compulsory detention before the Court could make an order under MCA s16 which had the effect of depriving him of his liberty.
The argument was that the “deprivation of liberty” for the purposes of the MCA is defined to have the same meaning as in Article 5(1) of the European convention. Article 5(1) says no one shall be deprived of their liberty except in specific circumstances, which includes the lawful detention of persons of unsound mind, under a procedure prescribed by law. In the case of Winterwerp v Netherlands 6301/73  ECHR 4 the European Court of Human Rights had held that, save in emergencies, no one of unsound mind should be detained unless three minimum (or “threshold”) criteria were met – (1) objective medical evidence of unsoundness of mind, (2) the mental disorder is of a kind or degree warranting compulsory confinement, and (3) continued confinement must depend on persistence of the mental disorder.
The second point was crucial. It was said on E’s behalf that to be compatible with Article 5, the Court’s powers to make an order depriving E of his liberty under MCA s16, could not come into play unless and until the Court found first that his mental condition warranted compulsory confinement. E argued that a psychiatric opinion would be required on this in every case.
The Court of Appeal unanimously rejected this in very clear terms, but their reasoning may prove to be problematic.
It was held that the MCA 2005 and DOLS in particular are compliant with Article 5, and “do indeed plug the Bournewood gap”. The MCA now provides a procedure prescribed by law, as required by Article 5, for depriving people of their liberty.
The correct approach is that set out in MCA (and DOLS) – the best interests assessment is at the heart of the process once there is credible expert evidence to establish that P lacks capacity to make the relevant decision. To require a psychiatric opinion in every case would make MCA "unworkable", and it would be inappropriate in the many cases like this, where the person is clearly “of unsound mind” due to a learning difficulty, but does not have a mental illness.
The Court of Appeal rejected E’s interpretation of Winterwerp because that case involved alleged mental illness and detention of a psychiatric patient in hospital.
That is the easy solution here – the European case law imposing a threshold criterion for deprivation of liberty (that the mental disorder must warrant compulsory detention) can be distinguished because that case involved detention of a mentally ill patient in a psychiatric hospital, and E in this case clearly lacks capacity, but is not mentally ill.
But what will we do in the more grey areas where, for example, a patient being deprived of liberty by an order of the Court under s16 (or under DOLS) is a patient who is mentally ill? Not every case of deprivation of liberty of a psychiatric patient will necessarily be dealt with under the Mental Health Act – for example, if the treatment actually required is for a physical health problem rather than for treatment of the mental disorder (MHA s63; and see Charles J in GJ v The Foundation Trust  EWHC 2972 (Fam)). It seems implausible that s16 (or DOLS) should operate differently depending on whether P has a learning disability or a mental illness (so long as that mental illness and the nature of the treatment required doesn’t make P ineligible for DOLS by virtue of coming within the Mental Health Act).
In GJ, Charles J emphasised that you cannot “pick and choose” between the Mental Health Act, which should have “primacy” if it can be used, and the MCA. Nonetheless, it remains the case that the MHA code of practice advises that MCA / DOLS should be considered before compulsory detention under section, as a less restrictive option. It is accepted that the MHA framework provides superior procedural safeguards for P, compared with MCA / DOLS, and this is presumably why Charles J was keen to say that the MHA should have primacy. If the Court under s16 (and by analogy a Supervisory Body under DOLS) does not need to be satisfied that P’s mental condition warrants compulsory detention before exercising their power to deprive P of his liberty, on the basis of a simple best interests approach, it seems that in fact it may be MCA / DOLS that is the much more restrictive option.
Two further points of interest arise from the judgment:
The following is an extract from Judiciary of England and Wales, 'Court of Protection Report 2010' (July 2011).
12. G v E and others(The President, Lord Justice Thorpe and Mr Justice Hedley, 16 July 2010). www.bailii.org/ew/cases/EWCA/Civ/2010/822.html This was an appeal against Mr Justice Jonathan Baker’s decision described in paragraph 4 above; the critical issue being, “was the judge right or wrong to reject the appellant’s submission that Article 5 of the ECHR places distinct threshold conditions which have to be satisfied before a person accepted to be lacking capacity can be detained in his or her best interests under the statutory regime established by the Mental Capacity Act 2005?” Article 5(1) provides that “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.”
Dismissing the appeal, the Court of Appeal: