Judge: European Court of Human Rights
Citation:  ECHR 964
These proceedings concerned the removal of legal capacity from an adult who suffered from cerebral palsy and who, it was thought, had begun to make irrational decisions about her financial affairs following an operation on her head, by refusing to pay bills, putting herself at risk of eviction.
A ‘social welfare centre’ applied to appoint its employee as the applicant’s guardian, and the employee consented to the application. The applicant was legally represented at the hearing concerning the removal of her legal capacity, and explained that the reason for her failure to pay her bills was that she had asked her son to deal with them in the aftermath of her operation, but he had failed to pay them.
A psychiatrist produced a report for the hearing which contained the infamous phrase ‘Lacks insight into her condition’ and concluded that she was not able to look after her personal needs, rights and interests, and might jeopardize the rights and interests of others.
The various domestic courts who heard the applicant’s case relied on the psychiatric evidence and concluded that a guardian should be appointed.
The applicant claimed that the process for depriving her of legal capacity had violated her rights under Article 8 ECHR. The court noted that its task was to consider whether, in light of the case as a whole, the reasons for measures taken were relevant and sufficient, and whether the decision-making process afforded due respect to the applicant’s Article 8 rights. The court noted that there was a margin of appreciation in such matters, but stated that “the Court would like to stress that strict scrutiny is called for where measures that have such adverse effect on an individual’s personal autonomy, as deprivation of legal capacity has, are at stake.” The court further noted that “depriving a person of his or her legal capacity, even in part, is a very serious measure which should be reserved for exceptional circumstances.”
Considering the facts of the Applicant’s case, the court found there had been a violation of Article 8. Although medical evidence as to capacity was relevant, it was the judge who was “required to assess all relevant facts concerning the person in question and his or her personal circumstances” and to consider “whether such an extreme measure is necessary or whether a less stringent measure might suffice.” The court also had to consider issues of proportionality: “When such an important interest for an individual’s private life is at stake a judge has to carefully balance all relevant factors in order to assess the proportionality of the measure to be taken. The necessary procedural safeguards require that any risk of arbitrariness in that respect is reduced to a minimum.”
The domestic courts had failed to hear evidence from a doctor who regularly saw the applicant and could comment on her state of health, which the psychiatrists had said was poor. Nor had the domestic courts established all the relevant facts about the applicant’s debts and the reason they had arisen. The ECtHR stated that “[e]ven when the national authorities establish with the required degree of certainty that a person has been experiencing difficulties in paying his or her bills, deprivation, even partial, of legal capacity should be a measure of last resort, applied only where the national authorities, after carrying out a careful consideration of possible alternatives, have concluded that no other, less restrictive, measure would serve the purpose or where other, less restrictive measure, have been unsuccessfully attempted.”
In respect of the legal proceedings themselves, the court found that there had been a conflict of interest in that the Centre responsible for the applicant had nominated one of its employees as guardian. That employee had consented to the application and made no submissions on the evidence. Although the applicant had in fact paid for her own legal representation, the court noted that the domestic law “does not provide for obligatory representation of the person concerned by an independent lawyer, despite the very serious nature of the issues concerned and the possible consequences of such proceedings…Furthermore, the Court reiterates that in cases of mentally disabled persons the States have an obligation to ensure that they are afforded independent representation, enabling them to have their Convention complaints examined before a court or other independent body.”
The court awarded the applicant 7,500 Euros in damages.
This case is of particular interest as the latest in a series of decisions by the ECtHR looking at the process of depriving individuals of legal capacity to make their own decisions. The court helpfully emphasises the importance of not relying on expert opinion, and of ascertaining all relevant facts before determining whether an individual lacks capacity – an issue that arises not just in respect of decisions about property and financial affairs, but also welfare matters. This decision also raises the question whether it is lawful for the court to rely on the written evidence of a psychiatrist in a case where ‘P’ asserts capacity, or whether a full hearing must be held, even if P’s litigation friend considers that the psychiatric evidence is probably correct.
The ECtHR’s insistence that the proportionality of a decision to deprive a person of legal capacity must be considered is of great interest, as the MCA and Code of Practice do not expressly require proportionality to be considered, nor do they require consideration of other mechanisms for achieving the same ends. While there is a presumption of capacity and an obligation to help ‘P’ demonstrate that she has capacity, there is no requirement to consider other forms of supported decision-making, rather than a court decision or the appointment of a deputy, and to try them out to see if they are successful.
Finally, the case will no doubt be cited in any future attempts to require public funding for representation for ‘P’ in a greater variety of Court of Protection proceedings – if there is an “obligation to ensure that they are afforded independent representation, enabling them to have their Convention complaints examined before a court or other independent body,” can the limiting of non-means tested legal aid to DOLS cases and/or the failure to fund the office of the Official Solicitor so that he truly can act as litigation friend of last resort in all cases (even where legal aid is not available) be compliant with Article 8?