GW v A Local Authority & Anor
2014
COURT OF PROTECTION
United Kingdom
CORAM
- THE HONOURABLE MR JUSTICE BAKER
Areas of Law
- Health Law
- Mental Capacity Law
- Human Rights Law
2014
COURT OF PROTECTION
United Kingdom
CORAM
AI Generated Summary
GW, a 48-year-old woman with Huntington’s Disease, appealed a Court of Protection decision stating she lacks capacity to leave her residence unescorted and make decisions about her care and residence. GW challenged the legality of the deprivation of liberty under s. 48 of the Mental Capacity Act 2005 and claimed the initial judgment failed to properly evaluate her capacity. The court, relying significantly on professional assessments, reaffirmed that GW lacked the requisite capacity. The appeal was dismissed, with the court emphasizing that any appellate tribunal would find Judge Marston’s judgment to be right and just.
Judgment
THE HONOURABLE MR JUSTICE BAKER
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the applicant and members of her family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Mr. Justice Baker :
In this appeal, a 48 year old woman, hereafter referred to as “GW”, suffering from Huntington’s Disease (hereafter “HD”) appeals against a decision of His Honour Judge Marston sitting in the Court of Protection. The notice of appeal raised two principal issues: (1) whether the learned judge erred in law in concluding that GW lacks capacity to leave and return to her residence unescorted and to make decisions concerning her care and residence and (2) whether the learned judge erred in refusing permission to appeal against an earlier decision by a district judge to make an interim order under s. 48 of the Mental Capacity Act 2005 which had the effect of depriving GW of her liberty.
This latter question potentially raised fundamental questions concerning the interpretation of section 48 – namely whether the practice of the Court of Protection in continuing or instigating a deprivation of liberty under section 48 is lawful under the statutory scheme set out in the 2005 Act and the Deprivation of Liberty Safeguards (“DOLS”) in Schedule A1 to the Act and/or is compliant with Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The fact that this point had been raised was a material consideration in my decision to grant permission to appeal against Judge Marston’s order. In their response to this appeal, the first respondent, the local authority for the area where GW lives, being the supervisory body for the purposes of the DOLS, and the second respondent, (“B Ltd”) the owners and managers of the residential home where GW is currently living, contended that this proposed appeal amounted in effect to a second appeal following the decision of the district judge. Under rule 182 of the Court of Protection Rules 2007 , “a decision of a judge of the court which was itself made on appeal from a judge of the court may only be appealed further to the Court of Appeal”. At the outset of the hearing before