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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> G v E & Ors [2010] EWCA Civ 822 (16 July 2010) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2010/822.html Cite as: [2010] EWCA Civ 822, [2011] PTSR 1574, (2010) 13 CCL Rep 384, 13 CCL Rep 384, [2010] 2 FCR 601, [2010] 4 All ER 579, [2011] 1 FLR 239, [2012] Fam 78, [2011] 3 WLR 652, [2010] Fam Law 1066 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Court of Protection
The Hon. Mr Justice Baker
COP11774770
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE THORPE
and
MR JUSTICE HEDLEY
____________________
G |
Appellant |
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- and – |
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1. E (by his Litigation Friend the Official Solicitor) 2. A Local Authority 3. F |
Respondents |
____________________
Richard Gordon QC and Amy Street (instructed by Irwin Mitchell LLP) for the 1st Respondent
Gillian Irving QC and David Mackley (instructed by Local Authority Legal Department) for the 2nd Respondent
Neil Allen (instructed by Linder Myers) for the 3rd Respondent
Hearing dates : 16th June 2010
____________________
Crown Copyright ©
Sir Nicholas Wall P:
Anonymity
.The appeal and an outline of the factual matrix from which it arises
"was the judge right or wrong to reject the appellant's submission that Article 5 of the European Convention on Human Rights (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 (MCA 2005)?"
(1) that an interim "best interests" declaration made by Ryder J on 8 December 2009 rendered E's detention at his then current address lawful;
(2) 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;
(3) that 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
(4) that 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.
As already indicated the critical issue is that identified in paragraph (2).
The facts in greater detail
6. His paediatrician has described his tuberous sclerosis as "a very complex genetic condition". His physical problems include associated kidney abnormalities and a severe scoliosis of the spine. His learning difficulties cause significant social and communication difficulties. His expressive and receptive language skills have been assessed by a speech and language therapist as developmentally equivalent to an 18-24 month old child. In oral evidence, E's paediatrician described how the difficulties suffered by those afflicted with this condition become more difficult as they get older. There are non-cancerous tumours in certain organs of the body in particular the brain, kidneys and heart. The tumours in the brain lead to learning difficulties. The illness is often progressive and there is an increased risk of malignancy in later life in the brain and the kidneys. There is a spectrum – at one end people can lead a relatively normal life, but at the other end, the condition can cause great difficulties – epilepsy, renal failure and malignancy. E's paediatrician described E as having a severe form of the condition.
7. E comes from a troubled family. His father had a moderate learning difficulty, alcohol problems and a history of physical and sexual violence towards women and was a Schedule 1 offender with a range of convictions for various criminal offences. There was much concern in E's early years that his mother was unable to protect E from his father. E has an older sister, G, the applicant in these proceedings. She is now aged 26 and lives with her partner and two young children, one of whom also suffers from tuberous sclerosis.
8. F has for many years been a foster carer with the local authority. E was first placed with her for respite care in 1995 and finally accommodated with her on a full-time basis by the local authority under section 20 of the 1989 Act in 1999. Thereafter, throughout E's childhood, he was looked after by F. He had some contact with his birth family including occasional visits from his sister G. In 2001, E started to attend a school for children with special needs. He has continued to attend that school up to the present day. There has been a long history of disagreements between the school and F. At various points during the last few years the school has expressed some concerns about F's care. But overall, it is important to note that the view of the professionals involved with E has been that he has been well cared for by F. For example, in 2002, one social worker observed: "F is very skilled in the care of E and has considerable insight into his complex needs". F has a son of her own, H, who is also aged 20 and thus much the same age as E. The boys grew up together. She also has an older son, I who unfortunately has been in prison for a number of offences. It is beyond argument that E has been treated and has regarded himself as a member of F's family – in the words of her counsel, he is "an integral part of family life".
9. In December 2004, E started attending the J Residential Home for respite care and continued to visit that establishment from time to time until he was removed from F's care in April 2009. In contrast to her relationship with the school, F has always had a good relationship with the staff at the J Residential Home.
The legal structure
"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:"
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision of his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drugs addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a Judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.
The relevant exception for present purposes is that contained in Article 5(1) (e) "the lawful detention…..of persons of unsound mind".
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
1 The principles
(1) The following principles apply for the purposes of this Act.
(2) A person must be assumed to have capacity unless it is established that he lacks capacity………
(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.
2. People who lack capacity
(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain…….
(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities…….
4. Best Interests
(1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of—
(a) the person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests
(2) The person making the determination must consider all the relevant circumstances ……….
(11) "Relevant circumstances" are those—
(a) of which the person making the determination is aware, and
(b) which it would be reasonable to regard as relevant…….
4A Restriction on deprivation of liberty
(1) This Act does not authorise any person ("D") to deprive any other person ("P") of his liberty.
But that is subject to-
(2) the following provisions of this section…..
(3) D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court.
(4) A relevant decision of the court is a decision made by an order under section 16(2)(a) in relation to a matter concerning P's personal welfare……
16(1) This section applies if a person ("P") lacks capacity in relation to a matter or matters concerning—
(a) P's personal welfare, or
(b) P's property and affairs.
(2) The court may—
(a) by making an order, make the decision or decisions on P's behalf in relation to the matter or matters, or
(b) appoint a person (a "deputy") to make decisions on P's behalf in relation to the matter or matters.
(3) The powers of the court under this section are subject to the provisions of this Act and, in particular, to sections 1 (the principles) and 4 (best interests) …...
(5) The court may make such further orders or give such directions, and confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2).
(6) Without prejudice to section 4, the court may make the order, give the directions or make the appointment on such terms as it considers are in P's best interests, even though no application is before the court for an order, directions or an appointment on those terms.
(7) An order of the court may be varied or discharged by a subsequent order……..
21A This section applies if either of the following has been given under Schedule A1–
(a) a standard authorisation;
(b) an urgent authorisation.
(2) Where a standard authorisation has been given, the court may determine any question relating to any of the following matters–
(a) whether the relevant person meets one or more of the qualifying requirements;
(b) the period during which the standard authorisation is to be in force;
(c) the purpose for which the standard authorisation is given;
(d) the conditions subject to which the standard authorisation is given.
(3) If the court determines any question under subsection (2), the court may make an order–
(a) varying or terminating the standard authorisation, or
(b) directing the supervisory body to vary or terminate the standard authorisation.
(4) Where an urgent authorisation has been given, the court may determine any question relating to any of the following matters–
(a) whether the urgent authorisation should have been given;
(b) the period during which the urgent authorisation is to be in force;
(c) the purpose for which the urgent authorisation is given.
(5) Where the court determines any question under subsection (4), the court may make an order–
(a) varying or terminating the urgent authorisation, or
(b) directing the managing authority of the relevant hospital or care home to vary or terminate the urgent authorisation.
(6) Where the court makes an order under subsection (3) or (5), the court may make an order about a person's liability for any act done in connection with the standard or urgent authorisation before its variation or termination.
(7) An order under subsection (6) may, in particular, exclude a person from liability."
The court may, pending the determination of an application to it in relation to a person ( "P"), make an order or give directions in respect of any matter if—
(a) there is reason to believe that P lacks capacity in relation to the matter,
(b) the matter is one to which its powers under this Act extend, and
(c) it is in P's best interests to make the order, or give the directions, without delay.
(1) under paragraphs 1 and 2 of Part 1, the managing authority of a care home may deprive a person ("P") of his liberty by detaining him if three conditions are satisfied;
(2) those three conditions are; (1) that P is detained in a care home, for the purpose of being given care, in circumstances which amount to deprivation of liberty; (2) that a standard or urgent authorisation is in force; and (3) that that authorisation relates to P and the care home in which he is detained. "Care Home" is defined in paragraph 178;
(3) Part 3 (paragraphs 12 to 20) identifies six "qualifying requirements" that have to be met for standard authorisations, including an age requirement (over 18), a mental capacity requirement (met if P lacks capacity in relation to the question whether or not he should be accommodated in the relevant care home for the purpose of having the relevant care) a best interests requirement (see below), an eligibility requirement (met unless P is ineligible to be deprived of liberty under Schedule 1A), and a "no refusals" requirement. (met unless P has made a relevant and valid advance decision declining some or all of the relevant care);
(4) the "best interests" requirement in part 3 of the Schedule is met if the following conditions are satisfied – that P is, or is to be, a detained resident; that it is in P's best interests to be a detained resident; that in order to prevent harm to P, it is necessary for him to be a detained resident; and that for him to be a detained resident is a proportionate response to the likelihood of P suffering harm and the seriousness of that harm.
The judgment
In that decision, the European Court held that except in emergencies, depriving the liberty of someone of unsound mind can only be lawful under Article 5(1)(e) if three minimal conditions are satisfied – (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 a kind or degree warranting compulsory confinement; (3) the validity of continued confinement depends upon the persistence of mental disorder.
In our view, that is a sufficient summary of the Winterwerp principles.
102. I do not read the MCA 2005 in the way proposed by (counsel for G and F), nor do I consider that such a reading is a necessary construction to make the new statutory provisions comply with Article 5. The only threshold which must be crossed in order to engage the court's powers under s. 16 is that the person concerned must lack capacity in relation to matters concerning his personal welfare, or property and affairs. As (counsel for E) has demonstrated, any assessment of E's best interests will inevitably involve a question whether deprivation of liberty is appropriate and proportionate. In carrying out that assessment, the court must apply s. 1(6) and have regard to whether the purpose for which the proposed detention is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.
105……..In my judgment, it cannot be right that the court has no jurisdiction to make a section 16(2)(a) order, or a section 48 interim order, in respect of a person who has been detained before an application is made to the court where that detention was an unlawful deprivation of liberty. The fact that E was unlawfully removed from F's care and remained unlawfully deprived of his liberty for eight months thereafter, does not automatically result in a conclusion that he must be returned to her care now. The decision as to his future care is a matter to be determined by a best interests assessment conducted by the court under its interim powers under section 48.
The grounds of appeal
5. The learned judge erred in law by failing to accept and or to apply the principle that a person can only lawfully be detained pursuant to Article 5 as a "person of unsound mind" if his medical condition warrants detention (Winterwerp). The learned judge erred in law……in holding that there was no threshold which must be met and or that the three "minimum conditions" identified in HL at paragraph 98, need not be considered in relation to MCA 2005. The consequence of the finding of the learned judge is to remove the protection conferred by Article 5, in all cases brought pursuant to MCA 2005. The learned judge should have ordered (E's) release because there was no evidence his mental condition warranted detention.
6. Further or alternatively, if contrary to the Appellant's submission, the learned judge was correct to hold that MCA 2005 does remove the protection afforded by the "minimum conditions" in HL then the provisions which remove the said protections are incompatible with Article 5.
The arguments for the appellant
Firstly, the authority responsible for the deprivation of liberty must establish through objective medical expertise that the person is of unsound mind. No such deprivation can occur without seeking the opinion of a medical expert which must be based on the present, not solely the past, circumstances. Any other approach falls short of the required protection against arbitrariness: see Varbanov v Bulgaria (Application 31365/96, 5th October 2000), paragraph 47.
Secondly, it must be established that the mental disorder is a kind or degree warranting compulsory confinement. This can only be justified if other, less severe measures, have been considered and found to be insufficient to safeguard the person of unsound mind: Witold Litwa v Poland (2001) 33 EHRR 53, §78; Varbanov v Bulgaria at paragraph 46. Moreover, there must also be some relationship between the ground for detention relied upon and the place and conditions of detention. In principle, the deprivation of liberty will only be lawful if effected in a hospital, clinic or other appropriate institution authorised for the Article 5(1)(e) purpose: Ashingdane v United Kingdom (1985) 7 EHRR 528, at paragraph 44.
Thirdly, the validity of continued confinement depends upon the persistence of mental disorder and must be not be for a disproportionate period of time.
… when it comes to best interests around deprivation of liberty, additional factors apply, including:
- whether any harm to the person could arise if the deprivation of liberty does not take place,
- what that harm would be,
- how likely that harm is to arise (i.e. is the level of risk sufficient to justify a step as serious as depriving a person of liberty?),
- what other care options there are which could avoid deprivation of liberty, and
- if deprivation of liberty is currently unavoidable, what action could be taken to avoid it in future.'
The case for E, as advanced by the Official Solicitor
The position of the local authority
Discussion
"The court is merely empowered under s. 16(2)(a) to make a decision in the individual's best interests, although in exercising that power it must comply with Article 5 (and the other provisions of ECHR). "
The meaning and effect of the decision of Ryder J
AND UPON IT BEING NOTED THAT THE COURT HEARD NO ARGUMENT AND MADE NO FINDINGS ON THE ISSUES OF DEPRIVATION OF LIBERTY AND BEST INTERESTS AND MADE THIS ORDER AS A RESULT OF THE PROVISIONAL AGREEMENT OF THE PARTIES
"93……. On behalf of the Official Solicitor, (counsel) submits that the effect of paragraph 4 was to make lawful E's deprivation of liberty pending the interim hearing. Under s.4A(3): "D [i.e. in this case X Ltd and / or the local authority] may deprive P [i.e. E] of his liberty if, by doing so, D is giving effect to a relevant decision of the court." Under s.4A(4), "a relevant decision of the court is a decision made by an order under section 16(2)(a) in relation to a matter concerning P's personal welfare". Under s.48, the court may, pending the determination of the application, make any order if the matter is one to which its powers under this Act extend. Paragraph 4 of Ryder J.'s order was thus, submits (counsel), a "relevant decision of the court". Any subsequent deprivation of liberty was thus in accordance with a procedure prescribed by law, although she suggests that, as a matter of good practice, Ryder J. could have added, so it was clear on the face of the order, that any deprivation of liberty to give effect to the decision of the court was authorised by virtue of MCA s.4A(3) and (4).
94. I agree with (counsel's) submission. By virtue of paragraph 4 of Ryder J.'s order of 8 December 2009, E's subsequent deprivation of liberty has been in accordance with a procedure prescribed by law and thus not unlawful".
The best interests analysis
"There was not really a right solution; there were two alternative wrong solutions. The problem of the judge was to appreciate the factors pointing in each direction and to decide which of the two bad solutions was the least dangerous, having regard to the long-term interests of the children, and so he decided the matter. Whether I would have decided it the same way if I had been in the position of the trial judge I do not know. I might have taken the same course as the judge and I might not, but I was never in that situation. 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."
Guidance
"4. This illustrates a major difficulty which Judges of the Family Division are currently experiencing with cases in this field. The changes brought about by the Mental Capacity Act 2005 have increased the role and work of theCourt of Protection
. The issues arising in such cases are often extremely complex and require lengthy consideration, but they are also urgent and require speedy determination. The more complex cases are referred to the judges of the Family Division, all of whom are appointed to sit in the
Court of Protection
. I understand that about ten per cent of the Division's judicial time is at the moment being taken by
Court of Protection work, although there has been no corresponding increase in resources. In this case, the court has had to accommodate this overrunning hearing in the middle of other pressing business.
Urgent attention needs to be given to increasing the resources of the Family Division to deal with these difficult and urgent cases."
Outcome