Tuesday, 20 July 2010

Mental Capacity, "best interests" and human rights

A court which is perhaps known to few people is the Court of Protection.  It exists to decide cases involving persons who no longer have the mental capacity to make their own decisions.  The court - (in its present form) - came into being under the Mental Capacity Act 2005 s.45.  The court often has to make the difficult decision about what is the "best interests" of such persons.  This was eventually bound to result in a challenge based on Article 5 of the European Convention for the Protection of Human Rights.  The challenge came - G v E and others [2010] EWCA Civ 822 - where the Court of Appeal (Civil Division) considered whether Article 5 imposed conditions which had to be met before detention based on the 2005 Act would be lawful.  The court has ruled that it does not.  Also, in particular, psychiatric evidence is not necessarily required.  Justification of detention under the Act is not a medical decision but a decision for the court to be made in the best interests of the person.  This must be right.  Parliament has entrusted this decision-making to the judges appointed to sit in this important court.


  1. The CoP is, as you say, little known. In both my personal & working life I have encountered a number of people who have had to seek legal decisions on matters with similarities to the case above. It would be very useful to read more about the CoP & the law pertaining to vulnerable persons. If it's not an imposition to ask, is there anything you might recommend for an interested lay reader?

  2. Unfortunately, I do not know of a "layman's guide" to this court. Although it became a proper court under the 2005 Act it has still continued in the somewhat hidden way in which it operated previously as an office of the high court. I have an interest in its work but not sufficient expertise to write anything in detail. There is a practitioner's guide:

    see here

  3. Thank you kindly.