Judge: Cobb J
Citation:  EWCOP 5
This appeal against the decision of District Judge Glentworth that we covered here raises important issues about the task of the court when considering whether to approve arrangements amounting to a deprivation of liberty. By way of refresher, the case concerned a 35 year old man with a number of disabilities. MAG had lived at his current placement since 2006. The property was a one bedroomed ground floor flat. He could not stand independently and the flat was too small to accommodate the use of his wheelchair. At home he mobilised by pulling himself along the floor and up on to chairs and his bed which had resulted in painful bursitis in both knees and calluses to his knees and ankles. It was agreed that MAG was deprived of his liberty for the purposes of Article 5(1).
The local authority had sought declarations and decisions relating to MAG. The case had been before the court for four years, during which time the Official Solicitor had requested the local authority to identify alternative accommodation options. Those commissioning the placement also agreed that it was in his best interests to live in a less restrictive property if one became available. NYCC sought final declarations on the basis that there were no immediate alternative residential options and it was in MAG’s best interests to continue to be deprived of his liberty in his current placement. Having found culpable delay on the part of NYCC in failing to find an alternative, the District Judge refused to continue an authorisation that risked breaching MAG’s Article 5 rights.
Relying on the recent Court of Appeal case of Re MN, the local authority and the CCG involved in MAG’s case argued that the Court had no jurisdiction to require it to find another property which would not ordinarily be available to MAG. Cobb J had little hesitation in holding that District Judge Glentworth had erred, and allowed the appeal. His discussion was wide-ranging and addressed in stages below, but as an overarching observation, he indicated that he considered that the District Judge had “uncharacteristically appear[ed] to have allowed her understandable concern about MAG’s living circumstances, and her palpable frustration at what she saw as NYCC’s tardiness in resolving his accommodation issues, to distract her from following a clear path to outcome. The result is one which I consider is unsupportable, and wrong.”
Importantly, Cobb J considered that the questions posed by the judge (framed by Counsel for the Official Solicitor) had been wrong. These were: “(1) whether the elements of the care package which involve a deprivation of liberty are lawful; and, if so, (2) whether that deprivation of liberty should be authorised by the court; and, if it is; and (3) the nature and frequency of the necessary ongoing reviews of the care arrangements by the court.”
Cobb J noted that:
Cobb J held that “[i]t appears that in answering her single question the judge may have avoided consideration of MAG’s best interests altogether, and conflated the issues arising in relation to deprivation of liberty raised by the separate questions, causing confusion and leading her to reach the wrong conclusion. Had she asked herself the questions posed in  above, she would, I apprehend, have answered the first question in the affirmative, and the second in the negative. She would accordingly have gone on to grant the authorisation.” It was important in this consideration that no party before District Judge Glentworth had disagreed that it was, at that point, in MAG’s best interests to reside at the property. “[t]here was evidence that he was happy there; the judge conceded that the placement had its positives, as she made clear in her supplemental judgment on 13 July 2015, §10 (“the fact that there are positives in relation to the existing accommodation is a factor to be taken into account”). The deprivation of liberty arising on the implementation of the care package for MAG is a necessary consequence of the least restrictive available option which best promotes his needs (see also  of Re NRA & Others  EWCOP 59).”
As to the second question, Cobb J held that “the judge would be required to consider the particular type of accommodation in which MAG is/was deprived of his liberty, and the purpose of the detention. Neither MAG’s property, nor the manner in which his care package was delivered (imposing the deprivations of liberty identified in  above) was so unsuitable as to be unlawful; there was no breach of MAG’s rights under the ECHR, and, significantly, the judge did not find one” (paragraph 26, emphasis in the original). Relying in particular on the Strasbourg authorities relating to the scope of Article 5(1) reviewed in R(Idira) v Secretary of State for the Home Department  EWCA Civ 1187, Cobb J noted that “[w]hat one collects from these authorities, and indeed the others referred to, is that context is everything. The court must consider the relationship between the ground of permitted deprivation of liberty and the place and conditions of the detention; cases concerning those who lack capacity are plainly akin to […] mental health cases [such as Ashingdane v United Kingdom (1985) 7 EHRR 528]. In this case, deprivation of liberty of a person who lacks capacity in his own home, under a care plan delivered by qualified care providers, is most unlikely to breach his Article 5 rights; indeed, the MCA 2005 specifically provides statutory authorisation to deprive someone of their liberty in this way.” “It follows from what I have discussed above,” Cobb J continued, “that the second question would have to have been answered in the negative, and the application for authorisation would therefore have been granted.”
Cobb J made clear that he considered that DJ Glentworth had erred in distinguishing Re MN which, on a proper analysis, applied across all welfare determinations, including those which involved deprivation of liberty. Although he agreed that the court could not endorse a care plan that involved or created breaches of MAG’s ECHR rights, he concluded that, the judge had, in fact, not found this to be the case (at most, that there was a risk of a breach). More fundamentally, and applying Idira, he concluded that, given that Article 5 ECHR is concerned with the reason for detention, not the conditions of it, a high threshold would have to be crossed and a breach would only arise if there was a finding that the place and condition of detentions was “seriously inappropriate” (paragraph 43).
Cobb J held that DJ Glentworth had inappropriately sought by making a direction that the Council “must take the steps necessary to ensure that there is no breach” of statute to do that on MAG’s behalf which MAG, if he had capacity, would not himself have been able to achieve in the absence of some public law remedy. “[L]ike MAG, the Court of Protection is confined to choosing between available options: see  of Charles J’s judgment in Re NRA & others (above: ) and  of Lady Hale’s judgment in Aintree University Hospitals NHS Trust v James  UKSC 67,  AC 591” (paragraph 44). In similar vein, he found that the effect of her refusal to grant authorise the deprivation of liberty was (and was intended to) require NYCC to take urgent steps to locate and provide alternative accommodation – such was, on the facts, to exert impermissible pressure.
Cobb J held that DJ Glentworth had exceeded her functions as regards her inquiry into NYCC’s conduct and reached essentially unfair conclusions. He also found it “highly regrettable” that a case was put on MAG’s behalf that Article 3 ECHR had been raised, when this was not an Article 3 case.
Cobb J concluded with two procedural points:
CommentThis case illustrates precisely why it was a fundamental error to try to ‘hook’ deprivation of liberty to the Mental Capacity Act. For purposes of Article 5(1)(e) ECHR, questions of best interests are – strictly speaking – irrelevant, and the only tests that apply (other than the presence of unsoundness of mind) are whether the deprivation of liberty is necessary and proportionate.
On a proper ECHR analysis, the questions posed by DJ Glentworth were therefore entirely correct. Yet, as Cobb J noted, they led her astray as regards the approach demanded by the Mental Capacity Act, which requires consideration of best interests. In a case such as the present, in which, in reality, there was only one placement on offer, it is frankly artificial to talk of a best interests decision being taken on behalf of MAG by the court. Yes, the court theoretically could have decided on behalf of MAG not to continue living at the placement and simply to live on the streets. In reality, however, no such option could have been chosen, the court itself being under a positive obligation to secure his Articles 2, 3 and 8 ECHR rights, all of which would be likely to have been breached had he simply departed the placement and lived on the streets. Further, the effect of a best interests decision being taken on his behalf that he should live at the placement in the absence of any alternative would place a serious hurdle in his way as regards the bringing of any judicial review application (unless that best interests decision was very firmly expressed as being taken on his behalf as between (1) living at an unsatisfactory placement or (2) being on the streets).
It would be far more honest if the court in a situation such as this where there is only one placement on offer were solely required to look with a critical eye at whether the deprivation of liberty was really necessary (and/or any other interference with ECHR rights was justified).
Applying the high threshold set by the authorities analysed in Idira, it may very well be that it is only a rare case that the court can properly find that the placement and conditions are so deficient that Article 5(1) ECHR will be breached, but at least the court would not be asking itself essentially unrealistic questions about the individual’s best interests.
Absent from the judgment at first instance or that before Cobb was any reference to Article 8 ECHR (although we understand that submissions were addressed to him on this aspect). At first blush, it would appear obvious that MAG was subject to a serious interference with his rights under Article 8 ECHR, and if DJ Glentworth were to have considered the question of whether that interference was necessary and proportionate, she may (a) have had to cross a lesser threshold than that imposed by Article 5; and (b) properly been able to find such on the facts of the case. If so, then – as with Munby LJ in A Local Authority X v MM – she might properly have found herself in a position where she could decline to consent on his behalf of the arrangements as representing a breach of his Article 8 rights, thereby putting the local authority to the choice of amending the care plan and the arrangements for MAG or having to seek the dismissal of the proceedings (and hence leaving itself open to a claim being brought on MAG’s behalf for breach of Article 8).
The dividing line between the jurisdiction of the COP and the Administrative Court – and the consequent delicate dance required of judges – is likely to remain an issue for some time come, not least as the Government has recently confirmed that the appeals (or, more strictly, review) process for the Care Act will not be introduced until 2020. In an ideal – or at least better – world, the solution to the problems thrown up by this case and that of MN is to secure access for all to a body which is properly able to review the decisions taken by public bodies as regards the delivery of care.
 Neil remaining instructed on behalf of MAG, and in line with standard policy, he has not contributed to this Note.