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Cite as: [2011] PTSR 1574, [2010] Fam Law 1066, 13 CCL Rep 384, [2010] 2 FCR 601, (2010) 13 CCL Rep 384, [2010] EWCA Civ 822, [2012] Fam 78, [2011] 3 WLR 652, [2010] 4 All ER 579, [2011] 1 FLR 239

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		Neutral Citation Number: [2010] EWCA Civ 822
		Case No: C3/2010/0814

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Court of Protection
The Hon. Mr Justice Baker
COP11774770

Royal Courts of Justice
Strand, London, WC2A 2LL

16/07/2010

B e f o r e :

SIR NICHOLAS WALL, THE PRESIDENT OF THE FAMILY DIVISION
LORD JUSTICE THORPE
and
MR JUSTICE HEDLEY
____________________

Between:

	G	Appellant
	- and –
	1. E (by his Litigation Friend the Official Solicitor) 2. A Local Authority 3. F	Respondents

____________________

Martin Westgate QC and Kerry Bretherton (instructed by Linder Myers) for the Appellant
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
____________________

HTML VERSION OF JUDGMENT
____________________

Sir Nicholas Wall P:

Anonymity

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

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 ([2010] EWHC 621) 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 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)?"

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 MCA 2005. We have, accordingly, taken time to reach our conclusion. That said, we are unanimous in our view that the answer given by the judge was correct and that the appeal should be dismissed. This judgment will explain our reasons for reaching that conclusion.

At this point we propose simply to summarise the facts, into which it is fair to say that the judge went with scrupulous care and in great detail. Suffice it, therefore, for present purposes to record that E is a young man of 19 who, as is common ground, lacks the capacity to make decisions about his own life – such as where he should live.

E was the subject of an application to the Court of Protection by his sister G, issued by the court on 13 November 2009. She, inter alia, sought declarations; (1) that the local authority had unlawfully detained E in breach of ECHR Article 5 and / or the Deprivation of Liberty Safeguards (DOLS) under MCA 2005 and / or ECHR Article 8; and (2) that it was in E's best interests to return to live with F, his adult carer. In those proceedings, as before us, E was represented by the Official Solicitor.

For about 10 years, that is until April 2009 when he was removed by the relevant local authority (which, after E, was the principal respondent to the proceedings), E resided with F, who is now a middle aged woman who was initially E's foster carer under section 20 of the Children Act 1989. However, after he attained his 18^th birthday, E lived with F under an adult placement.

Prior to the local authority removing E from F's care, it neither sought the consent of F or G, nor did it take proceedings in the Court of Protection or otherwise to justify the removal. The judge accordingly decided that in removing E to what he described as the V unit, and then to Z Road after April 2009, contrary to the wishes of F and G, the local authority had deprived E of his liberty under ECHR Article 5 and MCA 2005. He also decided that the removal from F's care, amongst other factors, constituted a breach of E's ECHR Article 8 rights. Neither finding – in so far as each relates to the period prior to any order of the Court of Protection sanctioning E's detention - is controversial in this appeal.

What give rise to the appeal are the following further findings which the judge went on to make, namely: -

(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).

In accordance with his finding under (4) of the preceding paragraph, the judge went on to make an order under section 48 of MCA 2005 that E should live at Z Road until the final hearing in July 2010 or prior further order. In the event, however, at a subsequent hearing on 6 May 2010, and having received further evidence, the judge took the view that the balance had shifted, and that, pending the final hearing in July 2010, E should return to live with F not later than 21 May.

Permission by G to appeal against the judgment handed down on 26 March 2010 was refused both by the judge and then on the papers by Arden LJ, but subsequently granted on an oral renewal on 4 May 2010 by the Master of the Rolls and Munby LJ. On 18 May 2010, on which date the judge handed down a judgment giving his reasons for his decision on 6 May 2010, the judge did give permission to appeal against his second judgment, since by then this court had given permission to appeal against his first order. However, no fresh point arises. It must follow that if the judge was right in the approach which he adopted on 26 March 2010, then he was right on 6 May, when he adopted the same approach. Accordingly, we have not, in this appeal, been concerned with the latter ruling. For completeness, we add that the July 2010 hearing remains fixed (albeit reduced in length) and that the sub-text of the appeal plainly remains the claim for damages which E is making against the local authority for its breaches of his rights under ECHR, with which, of course, we are not directly concerned.

We have referred to "the appeal" by G. In fact, she is supported by F, who has filed a respondent's notice, and who advances identical arguments in support of G's appeal. There is also a respondent's notice from E, which states that the Official Solicitor does not wish to appeal the judge's order, but in which the Official Solicitor submits that there was no breach of E's ECHR Article 8 rights in the judge's order either (1) because the order furthered and protected those rights; alternatively (2) because any breach was justified under ECHR Article 8(2) for the protection of E's health.

The local authority did not appear by counsel before us, but put in a detailed skeleton argument, which we have read and which we summarise briefly below. The Z home, in which E was living, also stated at one point that it wished to intervene. We made it clear, however, that the status of the home (which had been put in issue before the judge but which he did not decide) was immaterial to the issues raised in the appeal, and that we would make no findings about it. In these circumstances, the Z home took no part in the proceeding before us, and the appeal(s) proceeded on the basis of oral submissions made by Mr. Martin Westgate QC and Miss Kerry Bretherton for G and by Mr. Gordon QC for E. In addition to the local authority's skeleton argument, there was one from Mr. Neil Allen for F, which we have also read and taken into account.

The facts in greater detail

E suffers from a rare and very complex genetic condition known as tuberous sclerosis. This has left him with severe learning difficulties. He is not, however, mentally ill, and the provisions of the Mental Health Act 1983 do not apply. The judge described his condition and the relevant background in paragraphs 6 to 9 of the judgment, which we are content to adopt: -

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.

In the ensuing paragraphs, the judge went into a great deal of further detail which, for the purposes of this appeal, it is unnecessary for us to recite.

The legal structure

The terms of ECHR Article 5 are well known, but need, nonetheless to be set out. Article 5 is headed "Right to Liberty and Security" and reads as follows: -

"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".

ECHR Article 8 is equally well known. It is entitled "Right to Respect for Private and Family Life", and provides:

"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."

In his judgment, the judge summarised MCA and DOLS in some detail. For our purposes, the relevant sections of MCA are the following: -

Part 1

Persons who Lack Capacity

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……

Section 4A was inserted by section 50 of the Mental Health Act 2007 and came into force on 1 April 2009. Section 15 gives the court power to make relevant declarations and section 16, which is headed Powers to make decisions and appoint deputies: general reads, where material, as follows: -

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……..

The powers of the Court in relation to Schedule A1 (DOLS) are set out at section 21A of MCA 2005:

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."

Section 48 is headed Interim orders and directions and reads

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.

Section 64(5), the definition section, provides, in our judgment importantly, that references to "deprivation of liberty" in MCA 2005 have the same meaning as in Article 5(1) of ECHR. Section 64(6) provides that for the purposes of such references it does not matter whether P is deprived of his liberty by a public authority or not.

As the judge pointed out, Schedule A1 to MCA 2005 runs to 188 paragraphs, and is manifestly too bulky to be incorporated into this judgment. It will, we think, be sufficient if we make the following points about it, and in so doing we have adapted it to E's situation – that is to say, we have omitted any reference to a "hospital". Thus

(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

The judge approached the law in the following way. Firstly, he set out the terms of ECHR Articles 5 and 8. He then examined the inherent jurisdiction of the High Court to grant declaratory relief to safeguard and promote the welfare of vulnerable adults, including an analysis of the decision of the ECtHR in Winterwerp v Netherlands (Application 6301/73 (1979) 2 EHRR 387 ECtHR (Winterwerp) . He said (paragraph 56 of 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.

The judge then identified what has become known as "The Bournewood Gap", following the decision of the ECtHR in HL (HL v United Kingdom Application 45508/09 (2004) 40 EHRR 761 (HL), in which the latter held, contrary to the House of Lords, that HL had been deprived of his liberty and that the use by HL's doctors of the common law doctrine of necessity did not meet the requirement in ECHR Article 5 that such a detention must be carried out "in accordance with a procedure prescribed by law".

To anticipate for a moment, the judge's view, in a nutshell, was that the amendments to MCA 2005 (notably DOLS as set out in the new Schedule A1) introduced by the Mental Health Act 2007 effectively plugged the Bournewood gap. Such a view, which we share, only emerged, however, after a careful examination of all the statutory material, including the terms of the Act itself and Schedule A1, the MCA 2005 Code of Practice and the Deprivation of Liberty Safeguards Code of Practice 2008.

The judge's reasoning was that the introduction of a comprehensive statutory regime for the authorisation and control of placements which amounted to a deprivation of liberty meant that the court's inherent jurisdiction had been substantially superseded. In this, in our judgment, he was, once again, plainly right.

Against this background, the judge proceeded to answer the questions posed by the case. He found, uncontroversially, that E's condition of tuberous sclerosis, in particular, his profound learning difficulties, deprived him of the capacity to make decisions about his life. He went on to find that the local authority's removal of E from F's care and his placement at the V unit and Z Road without complying with the procedures laid down in the MCA 2005 amounted to a breach of E's ECHR Article 5 and 8 rights. As we have indicated, these conclusions are not controversial. What remain controversial are the judge's answers to the remaining questions.

Firstly, the judge rejected the proposition that - in effect by analogy with section 31 of the Children Act 1989 - ECHR Article 5 established a threshold condition or conditions which had to be satisfied in deprivation of liberty cases before it was open to the court to go on to consider what order was in E's best interests. In rejecting that proposition, the judge said: -

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.

The judge also relied on dicta of Munby J in Re PS (Incapacitated Vulnerable Adult) [2007] EWHC 623 (Fam) [2007] 2 FLR 1083 (PS) to the effect that the second Winterwerp condition would be satisfied if there was "evidence establishing at least a prima facie case that the individual lacks capacity and the confinement of the nature proposed is appropriate". The judge accordingly concluded: (1) that the deprivation of liberty fell to be assessed as part of the best interest analysis; (2) that whilst the court could not ex post facto authorise the earlier deprivation of liberty between 7 April and 8 December 2009, it was open to the court to sanction a future deprivation (and thereby make it lawful) by means of MCA 2005 section 16 or 48. On this point, the judge said:

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.

In accordance with these conclusions, the judge went on to conduct an extremely careful best interests analysis concluding, as we have already indicated, that on a fine balance it was in E's best interests in the interim to remain where he was.

The grounds of appeal

The critical grounds of appeal for present purposes are numbered 5 to 6 and read as follows: -

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

For the appellant (embracing also the arguments advanced on behalf of F), Mr. Westgate argued that according to both domestic and Strasbourg jurisprudence, except in emergencies, no-one could be deprived of liberty on the basis of unsoundness of mind pursuant to Article 5(1)(e) unless the three minimal conditions (derived from Winterwerp) were satisfied. These he enumerated as follows: -

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, 5^th 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.

Mr Westgate submitted that interim orders depriving liberty pursuant to sections 48 and 16 of MCA had to be construed compatibly with the ECHR jurisprudence. Given the parties' agreement that the circumstances at Z Road amounted to a deprivation of liberty, no such order, he argued, could lawfully have been made without expressly determining this second Winterwerp condition.

Mr. Westgate criticised the judge's reliance on Munby J's statement at paragraph 23 of PS, which we have summarised at paragraph 29 above. Not only, he argued, did Re PS precede the statutory jurisdiction, but Munby J. had expressly confined his comments to the invoking of the inherent jurisdiction in cases of the type with which the judge was then concerned. The nature of the confinement, counsel argued, must always be appropriate: see Ashingdane v United Kingdom (1985) 7 EHRR 528, at paragraph 44 (Ashingdane). Furthermore, he submitted, in relation to interim incapacity, section 48 of MCA 2005 now required the Court of Protection to be satisfied that there was 'reason to believe' that the person lacked decisional capacity.

Mr. Westgate argued, therefore that, save in emergencies, the substantive protection afforded by Article 5(1)(e), as interpreted in Winterwerp, could not be watered down, whether for the purposes of an interim or final judicial determination. Its demands could not be satisfied by the traditional balance sheet approach of a best interests analysis in this regard. It could not be in a person's best interests to be unlawfully detained, and to deny an incapacitated adult the complete protection of their right to liberty would fall short of that which the ECHR required.

Mr. Westgate agued that the absence of the Winterwerp threshold would also contradict the DOLS scheme. The second condition of the DOLS best interests qualifying requirement, he submitted, specifically called for a deprivation of liberty to be in the person's best interests: see MCA Schedule A1 para 16(2). In addition, other minimal conditions must also be satisfied before the requirement was met. Thus, under the third condition, it must be necessary to be a "detained resident" in order to prevent the person coming to harm: see MCA Schedule A1 para 16(4). There was also, Mr. Westgate argued, a fourth condition, namely the requirement that the deprivation of liberty be a proportionate response to both the likelihood of suffering harm and to the seriousness of that harm: see MCA Schedule A1 paragraph 16(5).

It therefore followed, Mr. Westgate submitted, that if any one of these conditions was not met, the best interests requirement was also not met. In those circumstances, to adopt a different interpretation to sections 48 and 16 – the court's equivalent power to DOLS – would be at odds with Schedule A1 that Schedule being designed to protect Article 5 rights.

Mr. Westgate went on to argue that the distinction in Schedule A1 between (a) whether the deprivation of liberty was in someone's best interests, and (b) the issues of necessity and proportionality, underlined the error presented in the present case. Mr Westgate took us to the MCA, DOLS Code of Practice at paragraph 4.61 which, he submitted, reflected the essence of the threshold test and stated:

… 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.'

Moreover, Mr. Westgate argued, the mental health assessor must consider how the person's mental health is likely to be affected by having their liberty deprived and these conclusions are then fed back into the best interests assessment: see MCA Schedule A1 paragraph 36 and paragraph 39(3)(a). The balance sheet approach to best interests could not, he suggested, be adapted compatibly or moulded so as to incorporate the threshold conditions. Any balancing of the second Winterwerp condition with other circumstances would water down its degree of substantive protection. The quality of domestic law must in this regard be sufficiently accessible, precise and foreseeable in its application to avoid the risk of arbitrariness: see Mooren v Germany (2010) 50 EHRR 23, at paragraph 76.

Furthermore, Mr. Westgate argued, if there was a threshold to interim deprivations of liberty, when considering the first Winterwerp condition, an appraisal by a psychiatrist was indispensable: see Varbanov v Bulgaria at paragraph 48. The psychologist's evidence in the instant case was far from objective: she was intimately tied up in the decision-making that violated Articles 5 and 8. She was not a psychiatrist and no doubt lacked the equivalent medical competencies. It followed that she lacked the relevant psychiatric expertise. Since there was no psychiatric evidence before the court there was, in effect, no justification for E's deprivation of liberty. Quite the contrary: the jointly instructed independent expert evidence was that he should be returned home.

As to the power to validate a deprivation of liberty which was previously invalid, Mr. Westgate submitted that whereas Article 5(1) strictly regulated the circumstances in which one's liberty could be taken away, Article 5(4) required a review of its legality thereafter: see HL paragraph 123. Such a review must be undertaken in the light, not only of domestic law requirements, but also of the text of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5(1)(e): see HL, at paragraph 135. Mr. Westgate therefore submitted that the judge was required to review, inter alia, whether E's mental disorder was of a kind or degree warranting compulsory confinement. He submitted that narrowing the determination to a basic best interests analysis was insufficiently wide to bear on the essential Winterwerp conditions and culminated in an error of law: see HL, at paragraph 135.

Guidance was also sought from us on the approach that should be adopted, particularly at the interim stage of the proceedings, as to how the threshold should be considered. One suggestion was that the court should adopt the Bwllfa principle: see Bwllfa and Merthyr Dare Steam Collieries [1891] Limited v Pontypridd Waterworks Company [1903] AC 426, namely to expect the Court of Protection to make an assessment of the threshold on the best evidence available at the date of the hearing.

The case for E, as advanced by the Official Solicitor

Through Mr. Gordon QC, the Official Solicitor submitted the judge had been right to answer the critical question identified in paragraph 2 of this judgment in the way that he had. It was common ground that the safeguards against arbitrary detention afforded by Article 5 ECHR applied to persons lacking capacity. E was not, however, mentally ill.

The second question underlying the appeal was whether or not those safeguards suggested or compelled the conclusion that there must 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 MCA 2005.

The Official Solicitor's position was that the Appellant had confused two elements of the process. Diagnosing unsoundness of mind (the first stage) might require medical evidence (and did so expressly under DOLS). There was such medical evidence in the present case justifying such a diagnosis (see, for example, the judgment at paragraph 6, which we have set out in paragraph 13 above).

However, the Official Solicitor argued that the second element in the equation was one of justification. In the case of a person lacking the requisite capacity, the decision as to whether such person must be detained in his or her best interests was a decision for a court; it was not a medical decision. This was now well established in the case-law. It followed that medical evidence would not necessarily be required before such detention could be justified.

The Official Solicitor argued that the Strasbourg jurisprudence relied on by the Appellant did not encompass the correct approach to Article 5(1)(e) to a case of incapacity, as opposed to a case of mental illness. It was clear that the ECtHR adopted a flexible approach to detention in a person's best interests, even where there was a finding by an expert authority that the mental disorder which justified a patient's compulsory confinement no longer persisted (see, for example, Johnson v United Kingdom (1999) 27 EHRR 296 in particular at paragraphs 61-63). Furthermore, as was apparent from the jurisprudence of the court, the ECHR was a living document, and one designed to meet emerging situations.

Mr Gordon submitted further that the judge had proceeded entirely correctly on the basis that the court must comply with Article 5 when making a decision which sanctions a deprivation of liberty in a person's best interests. It followed that when the judge rejected the submission that Article 5 set a 'threshold' test, he was rejecting the Appellant's characterisation of the Article 5 test. He was not rejecting the requirement to comply with Article 5.

In the present case it was not contested that E was of unsound mind within the meaning of Article 5. Mr Gordon reminded us that the MCA 2005 DOLS Code of Practice suggested that 'incapacity' under the MCA 2005 and 'unsoundness of mind' were not necessarily coterminous. However, in this case, it was not contested that E both lacked capacity under the MCA and was of unsound mind under Article 5. Put shortly, it was insufficient merely to show that the person was of unsound mind: the unsoundness of mind must also be shown to justify the deprivation of liberty because of the type or severity of the condition. Article 5 set no additional requirement that there be any further connection between the mental disorder and the confinement - for example that the confinement was for the purpose of treatment.

In the present case, Mr. Gordon argued, the judge had decided that the Court did not need to consider Article 5 as some separate or prior test before considering E's best interests. Rather, the two had to be considered in tandem. This was correct because the requirements of Article 5 were encompassed in the statutory requirements of MCA 2005.

The logic of the appellant's argument, Mr. Gordon submitted, was that the best interests of an incapacitated person which might, as in this case, compel his detention were subordinate to some supposed overriding threshold criteria under Article 5 which were separate from the MCA and precluded compulsory detention even if: (i) it was common ground that a person suffering from unsoundness of mind lacked capacity; (ii) a Court had decided on the evidence that the best interests of that person were served by compulsorily detaining him and (iii) there was a right to regular review that the person continued to be appropriately detained. Such a result would be absurd.

The judge, Mr. Gordon submitted, had been correct to consider Article 5 and best interests in tandem for two reasons. Firstly, Article 5 was encompassed in the best interests test under the MCA 2005 Secondly, the considerations under the best interests test (in particular 'all the relevant circumstances' under MCA 2005 section 4) were necessary for the court to ensure that it acted in compliance with the Article 5 and the other convention rights of the person in question.

In summary, the judge's first decision had been consistent with Article 5(1)(e), taking into account (under section 2 of the Human Rights Act 1998) the jurisprudence of the ECtHR. The decision took into account all the relevant circumstances, including the practical fact that a psychiatrist's report was awaited. It was in accordance with the substantive requirements of Article 5(1)(e) as elucidated in Winterwerp.

The position of the local authority

The local authority's arguments closely mirrored those of the Official Solicitor, in the same way that the skeleton argument filed on behalf of F closely mirrored that of Mr. Westgate.

The local authority argued, in essence, that MCA 2005 had specifically codified the approach and principles previously recognised and applied under the inherent jurisdiction: see Surrey Council v MB and Others [2007] EWHC 3085 paragraphs 27 to 31 and paragraph 36. It also submitted that sections 4A(3) to (5) and section 16(2)(a) of MCA 2005, specifically gave the Court the power to make an Order depriving an individual of his liberty if it was done in his best interests: see also section 1(5). Similarly, it submitted, schedule A1 (DOLS) was devised as an Article 5 compliant regime and had at its heart a best interests test. The local authority argued that the key to whether any deprivation of liberty should be authorised was a best interests assessment. It conceded that E's placement in April 2009 constituted an unlawful deprivation of his liberty, not because the Article 5 criteria were absent, but because the prior sanction of the court had not been obtained.

Discussion

We have set out the rival arguments in some detail since this is, as we understand it, the first time that arguments about the provisions of MCA 2005 and DOLS in respect of ECHR Article 5 have reached this court. Having done so, however, we are in no doubt at all that we prefer the arguments advanced by the Official Solicitor, and accepted by the judge.

First and foremost, we are of the opinion that MCA 2005 generally, and DOLS in particular: (1) do indeed plug the Bournewood gap; and (2) are ECHR Article 5 compliant. No question of incompatibility arises. We accept Mr. Gordon's submission – indeed, we understand it to be common ground - that the safeguards against arbitrary detention contained in ECHR Article 5 apply to persons lacking capacity. It is our view that MCA 2005 provides a "procedure prescribed by law" for depriving such persons of their liberty.

We do not think that the Strasbourg jurisprudence leads to the conclusions advanced by Mr. Westgate. In particular, 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.

With great respect, we think that one of the fallacies in Mr. Westgate's argument is that the European jurisprudence derives exclusively from the fact that in the cases which have reached the ECtHR, the issue has involved alleged mental illness and detention in a psychiatric hospital. In such a case, as the Mental Health Act 1983 requires, a psychiatric opinion that a given person requires detention is essential to justify it. In the instant case, E does not suffer from a psychiatric condition, and is not mentally ill. The evidence of impairment was essentially paediatric – see paragraph 6 of the judgment set out in paragraph 13 above. In these circumstances, psychiatric evidence is unlikely to be of material assistance at the diagnostic stage.

We were particularly concerned about the point because, as Mr. Gordon confirmed in argument, the cases under MCA 2005 in which the Official Solicitor is invited to act for the person who is believed to be incapable of managing his or her affairs often do not involve mental illness. Very many of them involve varying degrees of learning difficulties. 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. They are, of course, "of unsound mind" within ECHR Article 5, but in our judgment it plainly does not follow either that they are mentally ill, or that ECHR Article 5 requires psychiatric evidence as a threshold to the deprivation of their liberty. Indeed, learning difficulties often lie outside the expertise of the psychiatrist, but firmly within that of the psychologist.

Indeed, in the common case, where the adult concerned is suffering from a chronic condition, expert evidence, in our experience is usually provided by a psychologist or, as here, by a paediatrician. 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 simply be 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.

In this context we have additionally in mind the duty which all experts owe to the court: see, by analogy the Practice Direction: Experts in Family Proceedings relating to Children reported at [2009] 2 FLR 1383. On the facts of the instant case, there was abundant evidence upon which the judge could find – once again it was common ground – that E lacked capacity.

The question of evidence, however, is subsidiary to the underlying question which is whether or not MCA 2005 embraces the principles set out in ECHR Article 5. In our judgment it plainly does. Indeed, as Mr. Gordon put it, the judgment of the judge applies ECHR Article 5. The ECHR Article 5 safeguards apply to incapacity, and are reflected in the MCA 2005 regime. As the judge himself put it: -

"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). "

We also agree with Mr. Gordon that the justification of detention in a case 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.

The meaning and effect of the decision of Ryder J

On 8 December 2009, Ryder J made an order which, as appears from its face, reflected a provisional agreement between the parties. The order appointed the Official Solicitor to act as litigation friend for E, and made interim declarations to the effect that; (1) "on the information presently available" E lacked capacity to make decisions (inter alia) regarding his residence; (2) that "pending determination of the hearing of the interim issue of residence" it was in E's best interests to reside at his current address (the need, if any, for orders authorising deprivation of liberty to be considered by Baker J at the hearing due to commence on 14 January 2010); and (3) that it was lawful and in E's best interests to have contact with F and G. The balance of the order comprises, in effect, directions. Costs were reserved.

At the insistence of the judge, the following recital was inserted into the order immediately prior to the declarations which we have summarised in the preceding paragraph: -

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

In her grounds of appeal, G submits that the judge erred in law in holding that Ryder J's order rendered E's detention lawful. The argument, as we understood it, was that because the judge heard no evidence and made no findings, he could not have made an order rendering the detention lawful, or if he did, his order was not ECHR Article 6 compliant. Reliance was placed in the skeleton argument on the judgment of Judge LJ (as he then was) giving the judgment of this court in St. George's Healthcare NHS Trust v S [1999] Fam 26. Reliance was also placed on a number of observations made in Baygreen Properties v Gill [2002] EGLR 42, the argument being that an order authorising a deprivation of liberty could not be made by consent.

In our judgment, this appellant's argument on the point is simply unsustainable. Ryder J's order was plainly validly made by consent, and the judge sensibly recorded the fact by making clear that he had heard no evidence and made no findings. The ECHR Article 6 argument is plainly specious, as the order reflected an agreement, and all the parties bar one were represented.

The judge dealt with the point carefully in paragraphs 93 and 94 of his judgment.

"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".

We agree. In our judgment, the appellant's reliance on St. George's Healthcare NHS Trust v S is misplaced. In that case, this court upheld the principle that a person of sound mind could properly refuse life-saving treatment, and could not be declared psychiatrically ill because she did so. In our view the case has no relevance to the instant case.

The best interests analysis

We comment on this aspect of the case only to make the point that whereas any one of us might not have reached the conclusion which the judge reached, we are quite unable to fault the manner in which he went about his task or his conduct of what we will call, in shorthand, "the balancing exercise". In these circumstances it is clear to us that - on abundant authority - the judge's conclusions cannot be disturbed on appeal. We are plainly here in G v G [1985] 1 WLR 647 territory, and we think it sufficient to remind ourselves of the wise words of Cumming Bruce LJ in Clarke-Hunt v Newcombe(1982) 4 FLR 482, cited in G v G in which the Lord Justice said: -

"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

This is sufficient to dispose of the appeal. However, in paragraphs 3 to 5 of the judgment the judge identified the difficulties which the case had caused him and entered a plea for the judges of the Division charged with this difficult and onerous work to be provided with additional resources.

The case had come before the judge sitting on circuit for an interim hearing to consider whether E was currently deprived of his liberty and what was in E's best interest with regard to residence and contact pending the final hearing. The interim hearing had been listed for two days in a busy Family Division list containing other equally urgent cases.

In the event it became apparent to the judge that the issues to be determined at the interim hearing were extremely complex and that the two-day time estimate was wholly inadequate. A total of nine bundles of written material were filed (subsequently reduced to four "core" bundles). Specifically, the judge formed the view that it would not have been possible to do justice to the parties and the issues, even at the interim stage, without hearing extensive oral evidence and making final decisions on a number of the other issues raised in G's application in addition to those listed before him. Fortunately he was able to clear some time in the following week on circuit but in order to complete hearing the evidence it was necessary for him to return (for the convenience of the witnesses) on two separate days in the following weeks. In view of the extensive issues, and the wide ranging legal arguments deployed by the parties, he requested written submissions (which were duly delivered together with over seventy legal authorities). He then set aside a further day on 8 March (listed for counsel's convenience) in the middle of a lengthy case in London to consider supplementary oral submissions.

We would like to congratulate the judge on his handling of the case. His judgment, which runs to 183 paragraphs, is a model of clarity, and although reserved, was handed down on 26 March 2010, a little over a fortnight after he had heard counsel's supplementary oral submissions. Against this background, we can but echo what the judge says in paragraphs 4 and 5 of the judgment: -.

"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 the Court 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."

Without in any way seeking to diminish the force of the judge's plea for additional resources, we propose that, for the time being, any such application 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.

We acknowledge, nonetheless, that there will be times in heavy Family Division lists where a judge will have to strike balance between, on the one hand, the urgency of the need for a decision and, on the other, the length and nature (oral or written) of the evidence needed to make that decision. There will therefore be cases where oral or further expert evidence is simply impractical in the light of the urgency of the need for a decision. Into 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.

Outcome

The appeal(s) will be dismissed. We have not overlooked Mr. Gordon's point that the judge was wrong to find a breach of E's ECHR Article 8(1) rights in his own order, but in the light of his decision on best interests, we respectfully think the point academic, and thus make no finding about it.