G v E (by his litigation friend, the Official Solicitor) and Others
| Jurisdiction | England & Wales |
| Judgment Date | 2010 |
| Date | 2010 |
| Year | 2010 |
| Court | Court of Appeal (Civil Division) |
Vulnerable adult – Capacity – Deprivation of liberty – Local authority removing vulnerable adult (E) from placement with F – E’s sister seeking declarations that E detained unlawfully by local authority – Interim declaration being made that it was in E’s best interests to remain at local authority placement – Judge subsequently finding that interim declaration had rendered previously unlawful detention lawful – Whether judge erring as to effect of interim declaration – Whether necessary for threshold conditions to be satisfied before best interests assessment undertaken – Human Rights Act 1998, Sch 1, Pt I, arts 5, 8 – Mental Capacity Act 2005.
E suffered from a rare genetic condition which left him with severe learning difficulties. He was not, however, mentally ill, which meant that the provisions of the Mental Health Act 1983 did not apply to him. From 1999, he was accommodated with a local authority foster carer (F) under s 20 of the Children Act 1989. He remained with her pursuant to an adult placement upon reaching 18 years of age. Although the professionals involved with E considered him to be well cared for, he was removed from F’s care in 2009 and placed in a local authority unit. On 13 November 2009, his sister (G) issued an application in the Court of Protection seeking declarations, inter alia, that the local authority had unlawfully detained E and that it was in his best interests to return to live with F. On 8 December, Ryder J appointed the Official Solicitor to act as E’s litigation friend and made interim declarations to the effect that (i) on the information then available, E lacked capacity to make decisions regarding his residence; and (ii) pending determination of the hearing of the interim issue of residence, it was in his best interests to remain in the local authority placement. A recital to the order recorded that the court had heard no argument and made no findings on the issues of deprivation of liberty and best interests, and had made the order as a result of the provisional agreement of the parties. On 26 March 2010, Jonathan Baker J held, inter alia, that by removing E from F’s care contrary to the wishes of F and G and without taking proceedings to justify the removal, the local authority had deprived E of his liberty in violation of art 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Pt I of Sch 1 to the Human Rights Act 1998) and the Deprivation of Liberty Safeguards (DOLS) under the Mental Capacity Act 2005. The judge concluded,
however, that Ryder J’s interim ‘best interests’ declaration had rendered E’s detention lawful and that, on the facts, it was in his best interests to remain at his then current address. After receiving further evidence at a hearing on 6 May, the judge found that the balance had shifted and that E should live with F pending the final hearing. G appealed against the decision of 26 March 2010, submitting that the judge had erred in law in holding that Ryder J’s order had rendered E’s detention lawful. She also sought to challenge the judge’s rejection of her submission that art 5 created distinct threshold conditions which had to be satisfied before a person accepted to be lacking capacity could be detained in his or her best interests under the regime established by the 2005 Act. Article 5(1) provided that ‘… 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’. G argued, inter alia, that the safeguards afforded by art 5 compelled the conclusion that there had to be medical evidence before a court that a person’s mental disorder was sufficiently serious to warrant compulsory detention before an incapacitated person could be detained using the procedures set out in the 2005 Act.
Held – (1) The 2005 Act provided a ‘procedure prescribed by law’ for depriving persons who lacked capacity of their liberty. Article 5 of the Convention did not impose any threshold conditions which had to be satisfied before a best interests assessment under DOLS could be carried out (see [57]–[58], below).
(2) The justification of detention in a case under the 2005 Act was not a medical decision but a decision for the court, to be made in the best interests of the person whom it was sought to detain. Provided that there was credible expert evidence upon which the court could be satisfied that the individual concerned lacked capacity, that was sufficient. It would be unreal to require psychiatric evidence in every case, quite apart from the fact that in some cases it would be irrelevant. Cases under the 2005 Act in which the Official Solicitor was invited to act for the person believed to be incapable of managing his or her affairs often did not involve mental illness. Very many of them involved varying degrees of learning difficulties; E was representative of a class of incapacitated adults who were not mentally ill, and to whom the provisions of the 1983 Act did not apply. Although they were ‘of unsound mind’ within art 5 of the Convention, it plainly did not follow that they were mentally ill or that art 5 required psychiatric evidence as a threshold to the deprivation of their liberty (see [59]–[61], [64], below).
(3) In the instant case, the judge had not erred in law in holding that Ryder J’s order had rendered E’s detention lawful. The order had plainly been validly made by consent, and the judge had sensibly recorded that fact by making clear that he had heard no evidence and made no findings. Furthermore, it was impossible to fault the manner in which the judge had conducted ‘the balancing exercise’. The appeal would therefore be dismissed (see [67]–[68], [71], below).
Cases referred to in judgmentAshingdane v UK (1985) 7 EHRR 528, [1985] ECHR 8225/78, ECt HR.
Baygreen Properties Ltd v Gil[2002] EWCA Civ 1340, [2002] 3 EGLR 42.
Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co [1903] AC 426, [1900–3] All ER Rep 600, HL.
Clarke-Hunt v Newcombe (1982) 4 FLR 482, CA.
G v G [1985] 2 All ER 225, [1985] 1 WLR 647, [1985] FLR 894, HL.
HL v UK (2004) 81 BMLR 131, (2004) 17 BHRC 418, (2004) 40 EHRR 761, ECt HR.
Johnson v UK (1999) 27 EHRR 296, [1997] ECHR 22520/93, ECt HR.
Litwa v Poland [2000] ECHR 26629/95, ECt HR.
Mooren v Germany [2009] ECHR 11364/03, ECt HR.
Practice Direction: Experts in Family Proceedings Relating to Children [2009] 2 FLR 1383.
PS (incapacitated or vulnerable adult), Re[2007] EWHC 623 (Fam), [2007] 2 FLR 1083.
St George’s Healthcare NHS Trust v S, R v Collins, ex parte S[1998] 2 FCR 685, [1998] 3 All ER 673, [1999] Fam 26, [1998] 3 WLR 936, [1998] 2 FLR 728, CA.
Surrey CC v MB[2007] EWHC 3085 (Fam).
Varbanov v Bulgaria [2000] ECHR 31365/96, ECt HR.
Winterwerp v Netherlands (1979) 2 EHRR 387, [1979] ECHR 6301/73, ECt HR.
AppealG appealed against the decision of Jonathan Baker J ([2010] EWHC 621 (Fam), [2010] All ER (D) 120 (Apr)), sitting in the Court of Protection on 26 March 2010, that the local authority’s unlawful detention of her brother, E, a vulnerable adult with learning difficulties, had been rendered lawful by an interim declaration made by Ryder J on 8 December 2009 to the effect that, pending determination of the hearing of the interim issue of residence, it was in E’s best interests to remain in the local authority’s care. G also sought to challenge Baker J’s rejection of her submission that art 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 created threshold conditions which had to be satisfied before a best interests assessment could be carried out under the Mental Capacity Act 2005. The appeal was supported by F, with whom E had lived prior to his removal by the local authority. The Official Solicitor acted as E’s litigation friend. The facts are set out in the judgment.
Martin Westgate QC and Kerry Bretherton for G.
Richard Gordon QC and Amy Street for E.
Gillian Irving QC and David Mackley for the local authority.
Neil Allen for F.
.
SIR NICHOLAS WALL P. Anonymity[1] This is the judgment of the court, to which each of its members has contributed. Although we heard the appeal in open court on 16 June 2010, we hereby impose reporting restrictions, and this judgment is written anonymously. In particular, nothing must be published which in any way identifies any of the parties to the proceedings, whom we propose to identify only by initials or function. Any application to lift the restrictions imposed by this judgment should be made on notice to the full court: otherwise it will be a matter for the judge to decide at the July hearing whether or not, and if so to what extent, the anonymity hitherto imposed should be relaxed.
The appeal and an outline of the factual matrix from which it arises[2] This appeal arises from proceedings heard in the Court of Protection, and in particular from interim orders made by Jonathan Baker J in a reserved judgment (see [2010] EWHC 621 (Fam), [2010] All ER (D) 120 (Apr)) handed down on 26 March 2010. The critical issue raised by the appeal is neatly encapsulated by Mr Richard Gordon QC and Miss Amy Street, who appeared before us on the instructions of the Official Solicitor, in the following question:
‘was the judge right or wrong to reject the appellant’s submission that art 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 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?’
[3] This 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 Mental Capacity Act 2005 (the 2005 Act). We have...
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...F v Lambeth London BC[2001] 3 FCR 738, [2002] 1 FLR 217. G v E (by his litigation friend, the Official Solicitor)[2010] EWCA Civ 822, [2010] 2 FCR 601, [2010] 4 All ER 579, [2011] 3 WLR 652, [2011] 1 FLR 239; affg[2010] EWHC 621 (Fam), [2010] All ER (D) 120 KD (A Minor) (Ward: Termination o......