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GW v A Local Authority [2014] EWCOP 20, [2014] MHLO 59

"In this appeal, a 48 year old woman, hereafter referred to as 'GW', suffering from Huntington's Disease 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 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 me, Miss Weston on behalf of the appellant (who did not appear at first instance) conceded that this provision ruled out my consideration of the proposed further appeal. Accordingly, the only question for this court to determine is the appeal on the issue of capacity."

39 Essex Street

39 Essex Street have kindly agreed for the following summary to be reproduced below. For the original newsletter see 39 Essex Street Mental Capacity Law Newsletter#August 2014

Short Note: Another case that wasn’t

In a frustrating echo of the decision in TA v AA and Knowsley Metropolitan Borough Council [2013] EWCA Civ 1661!, a procedural requirement relating to appeals prevented Baker J in GW v A Local Authority and B Ltd [2014] EWCOP 20! from considering “[potentially] 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 appeal instead revolved around the question of whether the trial judge had erred in their assessment of GW’s capacity to leave and return to her residence unescorted and to make decisions concerning her care and residence. Over and above the confirmation that a trial judge should not adopt a ‘review’ approach to the assessment of capacity by relying solely on the view of the experts, but should instead carry out their own evaluation (as Baker J found that HHJ Marston had properly done), it is perhaps of – some limited – wider interest for its suggestion that, where possible, Circuit Judges should consider circulating drafts of judgments to assist in the identification of typographical errors. Founding a ground of appeal on the basis of excessive numbers of typos is not, however, a sensible ground, as Baker J made painfully clear.

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