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Court of Appeal holds that Mental Capacity Act 2005 ‘Best Interests’ regime is compatible with Article 5 ECHR

16/07/10

G v E (by his litigation friend the Official Solicitor) and Others

In a case which the court described as being ‘of considerable legal and practical importance' the Court of Appeal, upholding the submissions of the Official Solicitor, has held that the Mental Capacity Act (‘MCA') regime whereby the Court of Protection may detain an incapacitated person in what the court considers to be that person's best interests is compatible with Article 5 ECHR.

It was common ground that E had been unlawfully detained by a local authority in breach of Article 5 ECHR. The question was whether the Court of Protection in continuing that person's detention acted contrary to Article 5 ECHR by being required to apply, but not applying, distinct threshold conditions laid down by the European Court of Human Rights as governing the detention of persons of unsound mind.

The Court of Appeal, dismissing the appeal by E's sister against the order made by the Court of Protection, held that there were no threshold conditions to be applied and that the MCA provided a ‘procedure prescribed by law' for the purposes of compliance with Article 5.

The judgment is here.

Richard Gordon QC represented the Official Solicitor instructed by Irwin Mitchell.