G v E  EWCA Civ 822
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  EWHC 3385 (Fam) - costs
Thanks to Ben Troke (Hill Dickinson LLP) for providing a summary and commentary.
Thanks to Alex Ruck Keene (39 Essex Chambers) for providing a "further points of interest" section.
Summary and commentary
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:
- E had been deprived of his liberty unlawfully from the time he was removed by the Local Authority, until an order of the Court was granted allowing the placement in the residential unit to continue in the interim.
- There had been gross breaches of E’s rights not only under Article 5, but also Article 8 rights to privacy and family life, as the foster carer and his sister had not been consulted, or their involvement taken into account in the Local Authority’s decision making.
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.
Further points of interest
Two further points of interest arise from the judgment:
- The Court of Appeal made it clear (paragraphs 65-70) that an interim declaration (even contained in an order made by consent, without independent consideration by the court of the evidence or findings of fact) can suffice to stop the clock running for purposes of regularizing a deprivation of liberty by reference to Article 5 ECHR;
- Responding to Baker J’s plea for further resources to be dedicated to CoP cases in the Family Division, the Court of Appeal indicated that this would not be possible, but that such applications (which would presumably include complex cases involving DoLs) be listed urgently before the President who “will be able to deal swiftly with any aspects of it which do not brook delay and who, if he is unable to retain it himself, will be able to allocate it appropriately” (paragraph 76). Somewhat troublingly, however, the Court of Appeal indicated that there may simply be occasions when it is not possible for hearings to be listed which take into account oral and/or expert evidence, noting that “[i]nto issues of fairness and proportionality has to be factored the impact which the intervention of the case may have on other ongoing or waiting cases in the judge’s list.” This statement is welcome as a pragmatic acknowledgment of the reality of the situation, but is troubling if it suggests that some cases are going to receive more consideration than others as a result of the time available, rather than as a result of the complexity of the issues.
The following is an extract from Judiciary of England and Wales, 'Court of Protection Report 2010' (July 2011).
12. G v E and othersB (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:
- confirmed that the DOLs regime is compliant with Article 5, and has plugged the “Bournewood gap” (paragraph 57 of its joint judgment);
- noted that the appellant relied very heavily on Strasbourg jurisprudence that concerned alleged mental illness and detention in a psychiatric hospital (derived from Winterwerp);
- highlighted the fact that a substantial number of people are of ‘unsound mind’ for purposes of Article 5, because they have varying degrees of learning difficulties, but they are not “mentally ill”, as such;
- said that “E, sadly, is representative of a class of incapacitated adults who are not mentally ill, and to whom the provisions of the Mental Health Act 1983 do not apply” (paragraph 60);
- stated that (unlike cases falling under the Mental Health Act 1983 which require a psychiatric opinion) “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. It would be simply unreal to require psychiatric evidence in every case, quite apart from the fact that it would, in some cases, be irrelevant. To require such evidence would, in our judgment, make MCA 2005 unworkable” (paragraph 61);
- agreed with Richard Gordon QC, counsel for the Official Solicitor that the justification of detention 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);
- held that an interim declaration (even contained in an order made by consent, without independent consideration by the court of the evidence or findings of fact) can suffice to stop the clock running for purposes of regularizing a deprivation of liberty by reference to Article 5 ECHR (paragraphs 65 to 70);
- congratulated Mr Justice Baker on his handling of this case (paragraph 75), but in response to his plea for further resources to be dedicated to Court of Protection cases in the Family Division, the Court of Appeal indicated that this would not be possible, but that such applications be listed urgently before the President who “will be able to deal swiftly with any aspects of it which do not brook delay and who, if he is unable to retain it himself, will be able to allocate it appropriately” (paragraph 76).