AC and GC (Capacity: Hoarding: Best Interests) [2022] EWCOP 39 (15 August 2022) [2022] EWCOP 39

IN THE COURT OF PROTECTION
[2022] EWCOP 39Case No 13361896 & 1385996TVenue The County Court, Birmingham
Between
AC and GC (Capacity: Hoarding: Best Interests) [2022] EWCOP 39 (15 August 2022)
Date 15 August 2022
[34]It is a fundamental principle of the law, set out at section 1(2) of the Mental Capacity Act 2005, that a person must be assumed to have capacity unless it is established that he lacks capacity. It follows that those asserting that a person lacks capacity bear the burden of establishing it.[35]Two other principles underpin the determination of capacity:a. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success – section 1(3); andb. A person is not to be treated as unable to make a decision merely because he makes an unwise decision – section 1(4).[36]The "single test" [2] of capacity is set out in section 2(1) of the Act:
"A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, his mind or brain."
[37]That test falls to be interpreted by other provisions of the Act. Section 2 goes on to provide:(1) It does not matter whether the impairment or disturbance is permanent or temporary.(2) A lack of capacity cannot be established merely by reference to– (a) a person's age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.(3) …any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.[38]A 'functional test' is set out in section 3 of the Act:(1) …a person is unable to make a decision for himself if he is unable– (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means.)(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids, or any other means).(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.(4) Information relevant to a decision includes information about the reasonably foreseeable consequences of – (a) deciding one way or another, or (b) failing to make the decision.[40]In PC and NC v. City of York Council [2013] EWCA Civ 478 at paragraphs 35 and 40 Lord Justice McFarlane expressly approved the approach of the first instance judge (Hedley J) set out in the following terms:
‘Drawing these matters together, I am clear that the submissions made by Mr Hallin are sound and that the course adopted by Hedley J at paragraph 19 on the nature of the jurisdiction under MCA 2005 is the correct one. The determination of capacity under MCA 2005, Part 1 is decision specific. Some decisions, for example agreeing to marry or consenting to divorce, are status or act specific. Some other decisions, for example whether P should have contact with a particular individual, may be person specific. But all decisions, whatever their nature, fall to be evaluated within the straightforward and clear structure of MCA 2005, ss 1 to 3 which requires the court to have regard to 'a matter' requiring 'a decision'. There is neither need nor justification for the plain words of the statute to be embellished. I do not agree with the Official Solicitor's submission that absurd consequences flow from a failure to adopt either an act-specific or a person-specific approach to each category of decision that may fall for consideration. To the contrary, I endorse Mr Hallin's argument to the effect that removing the specific factual context from some decisions leaves nothing for the evaluation of capacity to bite upon.’ […] ‘Hedley J was therefore correct in the approach that he adopted in paragraph 19 of his judgment by fixing his attention 'upon the actual decision in hand' with the result that ground of appeal 3A, as I have cast it, must fail.’
In a number of cases ( PH v. A Local Authority [2011] EWHC 1704 (Fam) , CC v. KK & Ors [2012] EWHC 2136 (COP) at paras 18 to 25 and PCT v. LDV [2013] EWHC 272 (Fam) ), Baker J (as he was then) made a number of relevant and general observations to have regard to when a court is considering the issue of a person's capacity to make particular decisions: a) capacity is both issue-specific and time-specific. In other words, it is necessary to assess a person's ability to make a particular decision at a particular time, not their ability to make decisions in general; b) it is not necessary for the person to comprehend every detail of the issue, but the question is whether the person "can comprehend and weigh the salient details relevant to the decision to be made" and that assessment must bear in mind that "different individuals may give different weight to different factors"; c) the court must consider all relevant evidence and that it is important to remember that (i) the roles of the court and the expert are distinct (ii) the court is in a position to weigh the expert evidence against its findings on the other evidence and (iii) the court is the final decision-maker;[16]d) in considering the assessment of capacity and making its decision, the court should be careful not to be drawn towards an outcome that is more protective of the adult but should consider the matter in a detached and objective way.[39]The Supreme Court in A Local Authority v JB [2021] UKSC 52 stated at para 61 that the MCA 2005 applies a ‘function’ or ‘understanding’ approach to capacity by focussing on the personal ability of the person to make a particular decision. At paras 63-79, the Supreme Court clarified the correct ordering of the capacity test (i.e. starting with the question of whether the person is functionally capable or incapable of understanding, retaining, using and weighing the relevant information and communicating their decision). It also emphasised the importance of(1) identifying the precise matter upon which the person’s decision is required; and(2) identifying the information relevant to the decision. It also made clear that the reasonably foreseeable consequences of making (or not making) the decision that the person must be able to understand, retain, use and weigh can include the consequences not just for the person but for others. In summary, there are three elements to be considered when determining a question of capacity: 1. Is the person able to make their own decision (with support if required)? 2. If they cannot, is there an impairment or disturbance in the functioning of their mind or brain? 3. If so, is the person’s inability to make the decision because of the impairment or disturbance? The Role of Experts Whilst the evidence of psychiatrists is likely to be determinative of the issue of whether there is an impairment of the mind for the purposes of section 2(1) of the 2005 Act, the decision as to capacity is a judgment for the court to make ( Re SB [2013] EWHC 1417 (COP) ). Furthermore, in PH v A Local Authority [2011] EWHC 1704 (COP) Baker J. observed as follows at [16 (xiii)]:
‘In assessing the question of capacity, the court must consider all the relevant evidence. Clearly, the opinion of an independently-instructed expert will be likely to be of very considerable importance, but in many cases the evidence of other clinicians and professionals who have experience of treating and working with P will be just as important and in some cases more important. In assessing that evidence, the court must be aware of the difficulties which may arise as a result of the close professional relationship between the clinicians treating, and the key professionals working with, P. In Oldham MBC v GW and PW [2007] EWHC 136 (Fam) , a case brought under Part IV of the Children Act 1989, Ryder J referred to a ‘child protection imperative’, meaning ‘the need to protect a vulnerable child’ that for perfectly understandable reasons may lead to a lack of objectivity on the part of a treating clinician or other professional involved in caring for the child. Equally, in cases of vulnerable adults, there is a risk that all professionals involved with treating and helping that person - including, of course, a judge in the Court of Protection - may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective ’
. In DP v Hillingdon [2020] EWCOP 45 Hayden J. said [§61] that ‘ I remain convinced that the failure to inform P as to what an assessment is actually addressing will probably be "fatal to" or, at least, "gravely undermine" the reliability of any conclusion.” In AMDC v AG & CI [2020] EWCOP 58 Poole J. identified the requirements for an expert opinion on mental capacity in the Court of Protection. The court will note paragraphs 22 to 28 of the judgment. At para 28 the court set out the matters in detail:
“28 When providing written reports to the court on P’s capacity, it will benefit the court if the expert bears in mind the following: (a) An expert report on capacity is not a clinical assessment but should seek to assist the court to determine certain identified issues. The expert should therefore pay close regard to (i) the terms of the Mental Capacity Act and Code of Practice, and (ii) the letter of instruction. (b) The letter of instruction should, as it did in this case, identify the decisions under consideration, the relevant information for each decision, the need to consider the diagnostic and functional elements of capacity, and the causal relationship between any impairment and the inability to decide. It will assist the court if the expert structures their report accordingly. If an expert witness is unsure what decisions they are being asked to consider, what the relevant information is in respect to those decisions, or any other matter relevant to the making of their report, they should ask for clarification. (c) It is important that the parties and the court can see from their reports that the expert has understood and applied the presumption of capacity and the other fundamental principles set out at section 1 of the MCA 2005. (d) In cases where the expert assesses capacity in relation to more than one decision, (i) broad-brush conclusions are unlikely to be as helpful as specific conclusions as to the capacity to make each decision; (ii) experts should ensure that their opinions in relation to each decision are consistent and coherent. (e) An expert report should not only state the expert’s opinions, but also explain the basis of each opinion. The court is unlikely to give weight to an opinion unless it knows on what evidence it was based, and what reasoning led to it being formed. (f) If an expert changes their opinion on capacity following re-assessment or otherwise, they ought to provide a full explanation of why their conclusion has changed. (g) The interview with P need not be fully transcribed in the body of the report (although it might be provided in an appendix), but if the expert relies on a particular exchange or something said by P during interview, then at least an account of what was said should be included. (h) If on assessment P does not engage with the expert, then the expert is not required mechanically to ask P about each and every piece of relevant information if to do so would be obviously futile or even aggravating. However, the report should record what attempts were made to assist P to engage and what alternative strategies were used. If an expert hits a “brick wall” with P then they might want to liaise with others to formulate alternative strategies to engage P. The expert might consider what further bespoke education or support can be given to P to promote P’s capacity or P’s engagement in the decisions which may have to be taken on their behalf. Failure to take steps to assist P to engage and to support her in her decision-making would be contrary to the fundamental principles of the Mental Capacity Act 2005 sections 1(3) and 3(2) . 29. The newly instructed expert in this case may or may not reach the same conclusions as Dr Quinn, but it will be important that the parties and the court can see from their report that the fundamental principles of the MCA 2005 have been followed, that proper steps have been taken to support AG’s decision-making and participation in the assessment, and that the conclusions reached are adequately explained.”
Schedule A1 to the Mental Capacity Act 2005 Schedule A1 of the Act provides that the "managing authority", who may be a care home or a hospital, must obtain authorisation from the relevant local authority, the "supervisory body", to deprive someone lacking capacity of their liberty. The local authority has to arrange assessments in order to determine whether the qualifying criteria for the Deprivation of Liberty Safeguards (‘DoLS’) are met. That necessitates carrying out six assessments set out in para 12 and are: the age requirement; the mental health requirement; the mental capacity requirement; the best interests requirement; the eligibility requirement; and the no refusals requirement [3] . The authority to detain an individual under the DoLS derives from section 4A(5) of the Act:
‘(1) This Act does not authorise any person (“D”) to deprive any other person (“P”) of his liberty. (2) But that is subject to– (a) the following provisions of this section, and (b) section 4B. (3) D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court. (4) A relevant decision of the court is a decision made by an order under section 16(2)(a) in relation to a matter concerning P's personal welfare. (5) D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty).’
The powers of the court in relation to Schedule A1 are set out in section 21A(2) which give the court jurisdiction for the purposes of Article 5(4) of the European Convention on Human Rights (“ECHR”) to review the authorisation of a person’s detention and provides that:
‘Where a standard authorisation has been given, the court may determine any question relating to any of the following matters– (a) whether the relevant person meets one or more of the qualifying requirements (b) the period during which the standard authorisation is to be in force (c) the purpose for which the standard authorisation is given (d) the conditions subject to which the standard authorisation is given’
Thereafter section 21A(3) provides that:
‘If the court determines any question under subsection (2), the court may make an order– (a) varying or terminating the standard authorisation, or (b) directing the supervisory body to vary or terminate the standard authorisation’
Paragraph 12(1)(d), Part 3, Schedule A1 of the Act specifies ‘the best interests requirement’ as a qualifying requirement. The best interests requirement is further defined at para 16 of Schedule A1 . The Court's approach to a section 21A application is different to and distinct from its role in a standard welfare application. The section 21A application is intended to either vary or discharge a Deprivation of Liberty authorisation. In such applications, the task of the court is to evaluate the relevant qualifying requirements and to come to a view, on the available evidence, as to whether those requirements continue to be met ( DP v London Borough of Hillingdon [2020] EWCOP 45 at para 35). Charles J also addressed this in Re UF [2013] EWCOP 4289 ). That said, once an application is made under section 21A, the court’s powers are not confined simply to determining the question of whether P meets one or more of the qualifying requirements and the court has the power to make declarations under section 15 as to whether P lacks capacity to make any decision, and once such a declaration is made, the court has wide powers under section 16 to make decisions on P’s behalf concerning his personal welfare or property and affairs ( CC v KK [2012] EWHC 2136 (COP) , Baker J (as he was then) at para 16, PH v A Local Authority [2011] EWHC 1704 (Fam) , Baker J (as he was then) at para 15).[18]Sections 15 to 17 of the MCA grant the Court of Protection power to make decisions concerning personal welfare and to make declarations and orders in respect of a person who lacks capacity. Section 15 deals with declarations, including declarations as to the lawfulness or otherwise of any act which has been or is to be done. Section 16 enables the court, by making an order, to make personal welfare decisions for a person without capacity, and, by section 17(1)(a), the court's power in this regard extends to deciding where P lives. Section 16 MCA provides: Powers to make decisions and appoint deputies: general(1) This section applies if a person (“P”) lacks capacity in relation to a matter or matters concerning— (a) P's personal welfare, or (b) P's property and affairs.(2) The court may— (a) by making an order, make the decision or decisions on P's behalf in relation to the matter or matters, or (b) appoint a person (a “deputy”) to make decisions on P's behalf in relation to the matter or matters.(3) The powers of the court under this section are subject to the provisions of this Act and, in particular, to sections 1 (the principles) and 4 (best interests).(4) When deciding whether it is in P's best interests to appoint a deputy, the court must have regard (in addition to the matters mentioned in section 4) to the principles that— (a) a decision by the court is to be preferred to the appointment of a deputy to make a decision, and (b) the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.(5) The court may make such further orders or give such directions, and confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2).(6) Without prejudice to section 4, the court may make the order, give the directions or make the appointment on such terms as it considers are in P's best interests, even though no application is before the court for an order, directions or an appointment on those terms.(7) An order of the court may be varied or discharged by a subsequent order.(8) The court may, in particular, revoke the appointment of a deputy or vary the powers conferred on him if it is satisfied that the deputy— (a) has behaved, or is behaving, in a way that contravenes the authority conferred on him by the court or is not in P's best interests, or (b) proposes to behave in a way that would contravene that authority or would not be in P's best interests. Best interests[25]Where, because of their lack of mental capacity, a person is unable to make a decision that has to be made, that decision must be made for them in their best interests. That requires the court as decision maker to consider the matters outlined in section 4 of the MCA which provides: "(1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of—(a) the person's age or appearance, or(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests. (2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps. (3) He must consider— (a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and (b) if it appears likely that he will, when that is likely to be. (4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him. (5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death. (6) He must consider, so far as is reasonably ascertainable— (a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), (b) the beliefs and values that would be likely to influence his decision if he had capacity, and(c) the other factors that he would be likely to consider if he were able to do so.

(d) any deputy appointed for the person by the court,

[29]as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6)." The Mental Capacity Act 2005: Code of Practice provides guidance at Section 5:
"What does the Act mean when it talks about 'best interests'"
. At 5.13, the Code recognises the wide and flexible range of factors that may be relevant to a best interests’ decision:
"Not all factors in the checklist will be relevant to all types of decisions or actions, and in many cases other factors will have to be considered as well, even though some of them may then not be found to be relevant."
The leading case regarding the application of the best interests criteria is the decision of the Supreme Court in Aintree University Hospitals NHS Foundation Trust v James and others [2013] UKSC 67 . At paras 39 and 45 of her judgment, Baroness Hale stated:
‘The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological ……. they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.’ […] ‘The purpose of the best interests test is to consider matters from the patient's point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want. Nor will it always be possible to ascertain what an incapable patient's wishes are. .... But insofar as it is possible to ascertain the patient's wishes and feelings, his beliefs and values or the things which were important to him, it is those which should be taken into account because they are a component in making the choice which is right for him as an individual human being.’
[20]In Wye Valley NHS Trust v Mr B [2015] EWCOP 60 , Peter Jackson J (as he then was) stated:[21]'10. Where a patient lacks capacity it is accordingly of great importance to give proper weight to his wishes and feelings and to his beliefs and values ……. once incapacity is established so that a best interests decision must be made, there is no theoretical limit to the weight or lack of weight that should be given to the person's wishes and feelings, beliefs and values. In some cases, the conclusion will be that little weight or no weight can be given;in others, very significant weight will be due. 11. This is not an academic issue, but a necessary protection for the rights of people with disabilities. As the Act and the European Convention make clear, a conclusion that a person lacks decision-making capacity is not an "off-switch" for his rights and freedoms. To state the obvious, the wishes and feelings, beliefs and values of people with a mental disability are as important to them as they are to anyone else, and may even be more important. It would therefore be wrong in principle to apply any automatic discount to their point of view. 12 .... It is, I think, important to ensure that people with a disability are not - by the very fact of their disability - deprived of the range of reasonable outcomes that are available to others. For people with disabilities, the removal of such freedom of action as they have to control their own lives may be experienced as an even greater affront that it would be to others who are more fortunate.’ In ITW v Z, M & Various Charities [2009] EWHC 2525 (Fam) Munby J (as he then was) set out a number of features at para 35 which may be important when assessing P’s wishes and feelings:a. The degree of P's incapacity, for the nearer to the borderline the more weight must in principle be attached to P's wishes and feelings;b. The strength and consistency of the views being expressed by P;c. The possible impact on P of knowledge that their wishes and feelings are not being given effect to;d. The extent to which P's wishes and feelings are, or are not, rational, sensible, responsible and pragmatically capable of sensible implementation in the particular circumstances; ande. The extent to which P's wishes and feelings, if given effect to, can properly be accommodated within the court's overall assessment of what is in their best interests. In cases of vulnerable adults, there is a risk that all professionals involved with treating and helping that person (including a Judge in the Court of Protection) may feel drawn towards an outcome that is more protective of the adult. This point was articulated most strikingly in the judgment of Munby J in Re MM (An Adult) [2007] EWHC 2003 (Fam) at para 120:
‘A great judge once said, ‘all life is an experiment’, adding that ‘every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge’ (see Holmes J in Abrams v United States (1919) 250 US 616 at 630). The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be brought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good - in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable?’
[24]When assessing what weight to be given to the risks identified to the P’s health including whether a return home would be in their best interests, the court has confirmed that its function in challenges such as this can be to take decisions on behalf of P that public authorities feel are too risky for them properly to be able to take themselves, and that it is perfectly appropriate that responsibility for the outcome should fall on the shoulders of the court ( Re M (Best Interests: Deprivation of Liberty) [2013] EWCOP 3456 , Peter Jackson J (as he was then) at para 41) . In Re GC [2008] EWHC 3402 (Fam), Hedley J considered whether it was in the best interests of an elderly man to be discharged from hospital to the home where he had lived for many years and commented at para 21:
‘GC is a man in the 83rd year of his life and my concern is to ask myself: how will he most comfortably and happily spend the last years that are available to him? …. Next it seems to me that for the elderly there is often an importance in place which is not generally recognised by others; not only the physical place but also the relational structure that is associated with a place ...’
In connection with the issue of a ‘trial’ placement, Hedley J commented at para 24:[26]‘It seems to me that it would be wrong not to try, even with a degree of pessimism, a placement with a package of support’ The decision of District

Judge Eldergill in Westminster City Council v Manuela Sykes [2014] EWCOP B9 is of relevance:

‘several last months of freedom in one's own home at the end of one's life is worth having for many people with serious progressive illnesses, even if it comes at a cost of some distress. If a trial is not attempted now the reality is that she will never again have the opportunity to live in her own home’ and that ‘although there is a significant risk that a home care package at home will ‘fail’, there is also a significant risk that institutional care will 'fail' in this sense (that is, produce an outcome that is less than ideal and does not resolve all significant existing concerns)’

Mr Justice Hedley held in PvM (Vulnerable Adult) [2011] 2 F.L.R. 1375, at para [34]:

“I am very influenced, rightly or wrongly, but it is only right everyone should know it, by the timescales in the case. I am very influenced by the desire to allow people where it is at all possible to spend their end time within the family rather than in an institution, even if there are shortcomings in terms of care which an institution could address.”
In Re NP [2020] EWCOP 44 , the court agreed that a trial period in the marital home would be the best option, concluding that there was not such a level of risk in the trial as to prevent the court from considering it to be in the best interests of the P to attempt the same. In reaching its best interests’ decision, the court took account of Article 19 of the UN Convention on the Rights of Persons with Disabilities 2006, which provides the right to live in the community with choices equal to others, and General Comment No.5 of the United Nation’s CRPD Committee on institutions [4] (paras 27 - 29). In considering the less restrictive option for the P, whether it was in her best interests to return to her home to live with a contingency plan of maintaining her current residential placement for a period of time, Cobb J in UF v X County Council & Others (No 2) [2014] EWCOP 18 stated: ‘ Less restrictive option[82]In reviewing the options, I have had regard to whether the delivery of care to UF (i.e. "the act" or "purpose") can be as effectively achieved in a way that is "less restrictive" of the person's rights and freedom of action (per section 1(6)) than another. In this instance, the issue arises as to whether delivery of care at [P’s home] is likely to be 'less restrictive' than delivery of care at [the residential care home] .[83]While the difference between living at home and living in a care home is one which vividly engages the 'best interests' arguments, I am not sure that it engages the provisions of section 1(6) to the same degree, if at all; while it may well be (and is likely to be in many cases) that care at home is less restrictive, it is necessary, in my judgment, to analyse the specific care regime in place in each setting to decide which is the less restrictive on the facts of the case.[85]Even if I were to conclude that the simple fact of living at home is less restrictive than living in a care home, such a consideration would have to yield to a wider 'best interests' principles discussed more fully above: see London Borough of Havering v LD & KD [2010] EWHC 3876 (COP) at [9]: "The "best interests" principle takes priority - that is to say, the option which is in the person's best interests must be chosen - which may not necessarily be the least restrictive alternative".’ Article 8 ECHR Article 8 ECHR is also a relevant factor: Article 8 Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.[28]In K v LBX and Others [2012] EWCA Civ 79 , the Court of Appeal confirmed that there is no presumption in favour of family life when undertaking a best interests’ analysis. The exercise requires consideration of the factors set out at section 4. In the course of that evaluation a judge will always be required to factor in an assessment of whether the proposed course is necessary and appropriate and in particular whether it properly justifies the interference with the Article 8 rights of P. Thus, no artificial starting point should be imported into the exercise. Thorpe LJ observed, at para 35:
'the safe approach of the trial judge in Mental Capacity Act cases is to ascertain the best interests of the incapacitated adult on the application of the section 4 checklist. The judge should then ask whether the resulting conclusion amounts to a violation of Article 8 rights and whether that violation is nonetheless necessary and proportionate'
. Davies LJ noted, at para 63:
'there will undoubtedly be many cases in this context where Article 8 considerations will be a very important factor. Where (as here) Article 8 is engaged and where (as here) there will be a potential interference with the right to family life which has to be respected then the interference has to be justified: that is fundamental. … Where (as here) the family life is long standing, is existing and is of high quality, due weight needs to be given to that in assessing whether the proposed interference with the family life is justified and proportionate and in reaching the overall conclusion on best interests'
. The approach of Thorpe and Davies LJ in LBX (supra) has been widely applied see e.g.: A North East Local Authority v AC and BC [2018] EWCOP 34 , at para 157; in An NHS Foundation Trust v AB and CD [2019] EWCOP 45 , para 28. Deprivation of liberty[31]Article 5 ECHR applies to persons of all ages. Everyone has the right to liberty and security of person. All persons are entitled to the protection of the right under Article 5 not to be deprived, or continue to be deprived, of their liberty, save in accordance with the conditions specified in Article 5(1) and in accordance with a procedure prescribed by law. The list of exceptions to the right to liberty secured in Article 5(1) is an exhaustive one, and only a narrow interpretation of those exceptions is consistent with the aim of that provision. The procedure prescribed by law in a care home case (or a nursing home case, or a hospital case, but here we are concerned with a nursing home case) is within Schedule A1 to the Mental Capacity Act 2005 (see above).[32]The MCA 2005 makes specific provision in respect of acts or decisions which amount to deprivation of liberty. Deprivation of liberty is only permitted in three circumstances : [5]a. it is authorised by the Court of Protection by an order under section 16(2)(a) (which is the purpose of the current application);b. it is authorised under the procedures provided for in Schedule A1 (which relates only to deprivations in hospitals and in care homes, and therefore also applies in the matter currently under consideration);c. it falls within section 4B (which allows deprivation if it is necessary to give life sustaining treatment or to prevent a serious deterioration in the person's condition while a case is pending before the court and does not apply to the current application).[80]Section 64(5) of the Act provides that references to "deprivation of liberty" in the Act have the same meaning as in Article 5(1) ECHR. Any analysis of whether P has been in fact deprived of his liberty must therefore have close regard to the jurisprudence of the European and English courts on the interpretation of that Article. There is no statutory definition of 'deprivation of liberty.' Currently, the domestic understanding of the term derives from the Supreme Court decision in Cheshire West and Chester Council v. P and another [2014] AC 896 . That decision was not unanimous, which doubtless reflects the complexity of the issue, but the majority view expressed by Baroness Hale binds this Court and all parties to these proceedings. The "essential character" of deprivation of liberty was a matter of agreement before the Supreme Court:
"It is common ground that three components can be derived from [the Strasbourg authorities] , as follows: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state." (Baroness Hale at paragraph 37) The underlying principle of determining when circumstances amount to a deprivation of liberty was then set out: ".. what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage." (Baroness Hale at paragraph 46) An 'acid test' was defined: there is deprivation of liberty where a person "was under continuous supervision and control and was not free to leave." (Baroness Hale at paragraph 49) It is not relevant that the care arrangements have a benevolent or beneficial purpose. A conclusion that a person's living arrangements amount to a deprivation of liberty does not of itself imply any criticism of persons who arrange and/or provide the care. Rather, "
It is merely a recognition that human rights are for everyone, including the most disabled members of our community, and that those rights include the same right to liberty as has everyone else." (Baroness Hale at paragraph 1) and a reflection of "policy" that "Because of the extreme vulnerability of people like P, MIG and MEG, I believe that we should err on the side of caution in deciding what constitutes a deprivation of liberty in their case. They need a periodic independent check on whether the arrangements made for them are in their best interests…. Nor should we regard the need for such checks as in any way stigmatising of them or of their carers. Rather, they are a recognition of their equal dignity and status as human beings like the rest of us." (Baroness Hale at paragraph 57)[41]There has been judicial consideration of what it means to be "free to leave." In the Court of Appeal decision in Birmingham City Council v. D [2018] PTSR 1791 Sir James Munby P confirmed that "As I read her judgment (see paras 40–41), Baroness Hale DPSC was using "free to leave" in the sense I had described in JE v DE [2007] 2 FLR 1150 , para 115:
'The fundamental issue in this case … is whether DE was deprived of his liberty to leave the X home and whether DE has been and is deprived of his liberty to leave the Y home. And when I refer to leaving the X home and the Y home, I do not mean leaving for the purpose of some trip or outing approved by SCC or by those managing the institution; I mean leaving in the sense of removing himself permanently in order to live where and with whom he chooses …'
Statement of legal principles Agreed by the parties’ legal teams 18 July 2022 [1] And in the same order, pursuant to section 48 MCA 2005, the court has reason to believe that AC lacks capacity to revoke her lasting powers of attorney; provide access to her home to allow cleaning and decluttering to be carried out and for improvement works to the house to be completed; and make decisions about her property and affairs. [2] PC and NC v. City of York Council [2013] EWCA Civ 478 at paragraph 56. [3] Further elements of the scheme are to be found in Schedule A1 to the Mental Health Act 2005 and in the Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008/1858. [4] Whilst observing ‘the CRPD has not been incorporated into English and Welsh law, [but] the court should pay it due regard given the UK’s ratification.’ [5] As identified by Lady Hale in Cheshire West and Chester Council v. P and another [2014] AC 896 at paragraph 8.

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