GW, aged 48, who suffered from Huntington’s Disease (“HD”) appealed against an earlier decision of the Court of Protection. She argued that (1) the judge erred in law in concluding that she lacked capacity to leave and return to her residence unescorted and to make decisions concerning her care and residence and (2) the judge erred in refusing permission to appeal against an earlier decision of a district judge to make an interim order under section 48 of the Mental Capacity Act 2005 (“the 2005 Act”), which had had the effect of depriving her of her liberty.
In 2010 GW was diagnosed as suffering from HD. In 2011 she was referred to the community mental health team because of concerns about her lack of insight and irrational behaviour. In December 2011 she was detained in a psychiatric hospital under section 2 of the Mental Health Act 1983 (“the 1983 Act”). She was discharged from this hospital in January but then subsequently detained again under section 3 of the 1983 Act. In November 2012 GW was moved to a residential unit specialising in caring for people with HD. She was placed at the unit under a guardianship order under section 7 of the 1983 Act.
In May 2013 an urgent authorisation was granted to prevent GW leaving the property without supervision and support. An application was made to the Court of Protection on behalf of GW under section 21A of the 2005 Act seeking to challenge the urgent authorisation. The Court of Protection declared, pursuant to section 48 of the 2005 Act, that the court had reason to believe that GW lacked capacity to decide whether and when to leave the care home unescorted. The judge further ordered that it was lawful and in GW’s best interests to be escorted by an employee of B Ltd whilst on any trips out of the unit. She further ordered that it was lawful and in GW’s best interests to be returned to the unit, if she sought to leave or absconded, with the use of reasonable force if necessary (powers which exist for guardians under the Mental Health Act, in any event).
GW filed a notice of appeal against this order. The principal issue raised was the extent to which the Court of Protection can and should use its powers under section 48 of the 2005 Act to authorise a deprivation of liberty.
It was argued that HH Judge Marston had failed to follow the guidance given by the court in CC v KK  EWHC 2136 (COP) and Re TZ (No 2)  EWCOP 973, to the effect that the views of experts are relevant in assisting the court to make a decision as to capacity, but they are not determinative, and the judge had failed to consider the way in which the professionals’ opinions had been reached. In addition, it was argued that the judge had failed to attach proper weight to the evidence given by GW herself. It was also submitted that the judge failed to have regard to the statutory principles in section 1(3) and (4) of the 2005 Act as neither subsection was cited in the judgement. Lastly, following the observations of Ryder J (as he then was) in Oldham MBC v GW and PW  EWHC 136 (Fam) the court must be careful of avoiding the “protection imperative”, namely the risk that a capacity assessment will be unduly influenced by a perceived need to protect the individual rather than guided by a purely objective analysis.
The court found, from reading HH Judge Marston’s assessment of GW, that far from simply carrying out a review approach, he had carried out his own analysis of whether the functional test was satisfied. In addition he had observed later in his judgment that GW had in her written and oral evidence tried to explain or minimise her problems. This demonstrated to the court’s satisfaction that HH Judge Marston had indeed considered GW’s evidence on the issue.
HH Judge Marston had recorded the evidence given by the medical experts, that the cognitive deficit was caused by the HD which amounted to an impairment or disturbance in the functioning of the mind or brain which caused GW real risk when she was out because of the effect it had on her ability to process all the information required for her safety and the safety of others. The court found that this was an entirely proper application of sections 2 and 3 of the 2005 Act to the decision in question. The “information relevant to the decision” for the purposes of section 3 included the fact that GW, as a result of her significant cognitive deficit, was exposed to a risk of harm if she left the unit unescorted.
The court did not accept that HH Judge Marston had failed to have regard to the statutory principles in s 1(3) and (4) of the 2005 Act. The evidence at trial had included many examples of how professionals had considered how GW could be assisted to make decisions about unescorted leave.
The court was satisfied that HH Judge Marston had carried out a proper evaluation of capacity. In view of the evidence presented to the court and applying the statutory principles and guidance from the case law, GW did lack the capacity to make a decision about whether or not she should leave the unit unescorted. The appeal was dismissed.
The judge added this personal comment, which shows that the jurisdiction is indeed sensitive to the principle that the closer one is to having capacity, the worse the impact of this coercive but essential legal power will seem:
“I wish to express my profound sympathy with GW for her current predicament. It is plain from reading her evidence that she greatly values her freedom and I am sure she will bitterly resent this decision. I hope that ways can be found by those who provide her with care and support to mitigate the effect of this decision so that she can enjoy the opportunity of visits into the community with support that is effective but as unobtrusive as possible.”