The appeal was heard by the Honourable Mr Justice Cobb.
MAG was 35 years old and suffered from autism, ataxic cerebral palsy, hearing and visual impairments and a learning disability. His behaviour posed a risk to himself and others. He had 1:1 staffing at all times and 2:1 support when accessing the community.
NYCC was responsible for meeting MAG’s accommodation needs and they shared with ACCG the funding of them. MAG lived in a one-bedroom ground floor flat which was too small to accommodate the use of a wheelchair. There was no scope for sleeping night staff and no outside space he could use. He was unable to stand independently and he mobilised by crawling and pulling himself along, which resulted in him sustaining painful bursitis in both knees and calluses to his knees and ankles. MAG had no means to open the front door. It was accepted that it would be in MAG’s best interests to move to a less restrictive property.
In the event a suitable property was located prior to the appeal hearing but the outcome of the appeal did not become academic because of an issue about the lawfulness of the restriction on MAG’s liberty in the period between 13 July and his move.
NYCC accepted that the placement involved a deprivation of liberty but there was no immediate alternative residential option. District Judge Glentworth made a finding that NYCC had been guilty of culpable delay in finding a less restrictive property. She stated that she could not endorse a care regime which risked breaching MAG’s right to liberty and that she did not accept that she could authorise the deprivation of that liberty on the basis that nothing else was available. She stated that refusing the authorisation meant that NYCC must take the steps necessary to ensure that there is no breach.
In the first instance hearing it was agreed that MAG was deprived of his liberty for the purposes of Article 5(1) of the European Convention of Human Rights. As set out by District Judge Glentworth (at §13), this is only lawful if authorised by the court under sections 4A and 16(2) MCA. Compliance with the three requirements set out in Wintwerp v Netherlands (1979) 2 EHRR 387 is essential to ensure compliance with Article 5 and mean:
(i) that there must be medical evidence establishing unsoundness of mind;
(ii) of a kind which warrants the proposed measures; and
(iii) which is persisting at the time when the decision is taken.
Mr Justice Cobb referred to the recent decision of the Court of Appeal in R (Idira) v Secretary of State for the Home Department  EWCA Civ 1187, in which the judgment of the Master of the Rolls contains a summary of relevant Strasbourg jurisprudence from  to . Mr Justice Cobb stated at para. 26 of his judgment:
“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.”
He went on to consider the decision of the Court of Appeal in Re MN  EWCA Civ 411. He cited Sir James Munby P’s lead judgment and in particular the following (Re MN ):
“The Court of Protection has no more power, just because it is acting on behalf of an adult who lacks capacity, to obtain resources or facilities from a third party, whether a private individual or a public authority, than the adult if he had capacity would be able to obtain himself... The Court of Protection is thus confined to choosing between available options, including those which there is good reason to believe will be forthcoming in the foreseeable future.”
Mr Justice Cobb continued with the passage at  of Sir James Munby P’s judgment:
“The Court of Protection, like the family court and the Family Division, can explore the care plan being put forward by a public authority and, where appropriate, require the authority to go away and think again. Rigorous probing, searching questions and persuasion are permissible; pressure is not. And in the final analysis the Court of Protection cannot compel a public authority to agree a care plan which the authority is unwilling to implement.”
Mr Justice Cobb granted the application for permission to appeal and allowed the appeals, setting aside the decision of District Judge Glentworth. He made an order pursuant to section 16(2)(a) of the MCA 2005 authorising the deprivation of MAG’s liberty at his property and with the current care package (or alternative accommodation and care package as may be identified and agreed) and listed the case before a different District Judge sitting in the Court of Protection for further consideration of the current arrangements for MAG’s care.
District Judge Glentworth was criticised for going straight to consider whether the elements of the care package which involved a deprivation of liberty were lawful. Mr Justice Cobb stated that two separate questions were required: firstly, whether it was in MAG’s best interests to live at the property, noting that although he is deprived of his liberty, there is no alternative available which offers a lesser degree of restriction; and secondly, whether the accommodation provided was so unsuitable as to be unlawfully so provided, breaching MAG’s rights under ECHR (notably Article 5).
Mr Justice Cobb commented at para. 37 that District Judge Glentworth sought to make a distinction between welfare decisions (as in Re MN) and decisions involving deprivation of liberty (as here) but that he found her reasoning unconvincing. He stated that she identified no passage in the judgment in Re MN which purports to limit its scope, nor does she identify any proper basis for asserting that the guidance in Re MN as to the limits of the Court of Protection’s role is irrelevant where Article 5 is engaged.
Mr Justice Cobb concluded that Re MN would only not be applicable in this case if the accommodation and care package breached MAG’s human rights and were inherently unlawful. He was not satisfied that this was the case and his reasons can be summarised as follows:
(i) Article 5 is concerned with the reasons for the detention, not the conditions of it;
(ii) The “overarching purpose of Article 5 is to protect the individual from arbitrariness” (Idira );
(iii) Article 5 requires that the conditions are appropriate, not that they are the most appropriate (Idira at );
(iv) A proper and balanced determination would have revealed (a) many of the positive attributes of the accommodation and (b) the likely devastation which MAG would experience in moving;
(v) The judge did not explicitly find any breach of Article 5; there is no finding of “serious inappropriateness” (per Idira) of the home or the care package. Deprivation of liberty is a binary concept; either a person is, or is not, deprived of the liberty.
(vi) The judge had granted interim authorisations of deprivation of liberty of MAG at his home for more than three and a half years;
(vii) A “high threshold” would need to be crossed;
Finally, Mr Justice Cobb commented, at para. 59 if his judgment, that this case illustrated the need urgently to bring in similar case management protocol in the Court of Protection jurisdiction as that of the six-month time limit applicable in care proceedings.
Read the full text of the judgment on Bailii