Tuesday, 20 July 2010
Mental Capacity, "best interests" and human rights
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  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.