Article 5: the Court of Appeal has another go!
9th November 2011The Court of Appeal has today handed down the second in what is expected to be a trilogy of judgments on the vexed question of what constitutes a deprivation of liberty within the context of the Mental Capacity Act 2005 particularly in respect of those in supported living (MIG and MEG was the first and RK will be the third). In Cheshire West and Chester Council v. P and M [2011] EWCA Civ. 1257 the Court overturned Mr. Justice Baker’s decision in the Court of Protection on the engagement of Article 5. He decided it was engaged, the Court of Appeal decided that it was not.
In the lead judgment, Lord Justice Munby has given new guidance on how to identify whether Article 5 is engaged in Court of Protection cases. Most significantly of all he has clarified the relevance of the “purpose” of the restrictions imposed in determining whether Article 5 is engaged. He has also introduced the notion of a “comparator” when considering the concrete situation of the person concerned- i.e. when deciding whether a person is deprived of his liberty his situation must be compared with another person with similar disabilities and not just the ordinary person.
Whilst this powerful judgment (by far the best effort by the Court of Appeal so far on this issue) contains much common sense as well as cogent intellectual analysis, it has the potential for unfortunate unintended consequences. Taken to its logical conclusion it could subvert the purpose of the Mental Capacity Act altogether and lead to discriminatory implementation of restrictive regimes with those who are the subject of those regimes having no effective right of challenge. Simon Burrows was instructed throughout by the Official Solicitor on behalf of P (the person subject to the regime) and led by Richard Gordon, Q.C. in the Court of Appeal. An appeal to the Supreme Court is being considered.
There is a link to a PDF of the judgement below:
cwcc_v_p__m_ca_-_final_judgement.pdf