G v E & Ors [2010] EWCA Civ 822 (16 July 2010)

G v E & Ors [2010] EWCA Civ 822 (16 July 2010)

Article 5 ECHR does not impose threshold conditions separate from the statutory regime under the Mental Capacity Act 2005. The MCA 2005 and DOLS provide a procedure prescribed by law for authorising deprivation of liberty, and the best interests assessment under the Act is sufficient to ensure compliance with Article 5. There is no requirement for additional threshold criteria or psychiatric evidence in every case where the person is not mentally ill but lacks capacity.

Citation
[2010] EWCA Civ 822
Parties
Appellant: G; 1st Respondent: E (by his Litigation Friend the Official Solicitor); 2nd Respondent: A Local Authority; 3rd Respondent: F
Jurisdiction
England and Wales
Judgment Date
16 July 2010
Procedural Posture
Appeal (civil) From the Court of Protection / Judgment on Appeal
Outcome
Appeal dismissed
Legal Topics
Deprivation of Liberty, Best Interests, Article 5 ECHR, Article 8 ECHR, Mental Capacity Act 2005, Deprivation of Liberty Safeguards (dols)
Mental Capacity Law Human Rights Law Family Law Deprivation of Liberty Best Interests Article 5 ECHR Article 8 ECHR Mental Capacity Act 2005 +1 more

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Parties

G

Appellant

E (by his Litigation Friend the Official Solicitor)

1st Respondent

A Local Authority

2nd Respondent

F

3rd Respondent

Procedural Posture

Appeal (civil) From the Court of Protection / Judgment on Appeal

Legal Issues

  1. 1 Whether Article 5 ECHR imposes threshold conditions before a person lacking capacity can be detained under the Mental Capacity Act 2005
  2. 2 Whether the Mental Capacity Act 2005 and DOLS regime are compliant with Article 5 ECHR
  3. 3 Whether a best interests assessment under the MCA 2005 is sufficient to authorise deprivation of liberty

Ratio Decidendi

Article 5 ECHR does not impose threshold conditions separate from the statutory regime under the Mental Capacity Act 2005. The MCA 2005 and DOLS provide a procedure prescribed by law for authorising deprivation of liberty, and the best interests assessment under the Act is sufficient to ensure compliance with Article 5. There is no requirement for additional threshold criteria or psychiatric evidence in every case where the person is not mentally ill but lacks capacity.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed. The interim and subsequent orders of the Court of Protection are upheld. Reporting restrictions and anonymity remain in place.