The issue in this case was whether, in order for the UK to avoid being in breach of Article 5(1) of the ECHR, it is necessary for a welfare order to be made by the Court of Protection where the Patient is being deprived of his or her liberty in a private arrangement rather than in a care home or hospital (where DOLS would apply). The Secretary of State for Justice lost its appeal, the court ruling that Mr Justice Charles was right in saying that, absent the making of a welfare order by the CoP, there are insufficient procedural safeguards against arbitrary detention in a purely private care regime and thus a CoP welfare order must be obtained in such circumstances.
​It is interesting to note that Sir Terence Etherton MR concluded by saying that "it is important to note that, while an application to the CoP is necessary in the present state of law and practice for the State to discharge its positive obligation under Article 5(1), such a step might not be essential if a different legislative and practical regime were to provide for proactive investigation by a suitable independent body and periodic reviews. It would ... be for the Government to fill the gap as it had done in the case of the Bournewood gap."

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The Patient's daughter had succeeded in her application that CANH should be withdrawn and that her mother should be transferred to a hospice (see Re N [2015] EWCOP 76). The Patient's daughter made an application for costs against the CCG. The judge held that the CCG should pay half the applicant's costs in circumstances where "their responses entailed avoidable delay and, particularly at the procedural stages, a disturbing disregard for National Guidelines".

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The Patient was in a minimally conscious state following a road accident in 2015. He was being kept alive by clinically assisted nutrition and hydration (CANH). He had not made an advance decision nor was there a power of attorney in place. His family wanted him to move to a hospice where he would receive palliative care, his CANH treatment would not be continued and as a result he would die. Mr Justice Charles ruled that it was not in the Patient's best interests for the court to give consent to his life sustaining treatment by CANH and that therefore it would be lawful for the clinical practitioners to withold or withdraw it.

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Also read the related judgment where Mr Justice Charles ruled that applications relating to CANH can be brought under s21 MCA and thus the Patient's wife was eligible for non means tested funding through legal aid.

The P was an elderly man suffereing from prolonged disordered consciousness. The judge made declarations sought by the parties in which it was proposed that the P underwent a tracheostomy under general anaesthetic and transferred to a suitable unit for further treatment and/or assessment.

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Mr Justice Baker considers how RPRs and s.39D IMCAs should decide whether to bring an application to the Court of Protection under s.21A of the MCA to challenge a standard authorisation under Schedule A1.
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He rejected the argument of the Official Solicitor which was a presumption that P wishes to exercise the Article 5(4) right unless the RPR is satisfied that he or she does not. Instead he said:

"The RPR and, when appointed, the IMCA, must consider not only the direct evidence of expression of wish, but also indirect evidence of P's wishes as inferred from behaviour taking into account all the circumstances in carrying out the assessment. The RPR must focus on the question whether P wishes to apply to the court and not simply whether he or she objects to the arrangements for their care.

On the other hand, where P is unable to communicate his/her wishes, the RPR should consider what those wishes would be, were he or she able to communicate them. The right to apply to the Court of Protection is available to all persons subject to authorisation under Schedule A1, irrespective of whether or not they can communicate their wishes. The obligation on the RPR to represent and support P in matters relating to the Schedule includes supporting and representing P in making an application where the RPR concludes that P would wish to make the application in circumstances where he or she is unable to communicate that wish."

Paragraph 86 of the judgment provides a helpful guide, listing the issues the RPR/IMCA should consider before making an application to the COP.

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