A Local Authority v LD & Anor.
[2023] EWHC 1258 (Fam)
Stockport Metropolitan Borough Council v KB & Ors
21 December 2023
[2023] EWCOP 58
Court of Protection
A woman needs care that restricts her freedom. The court decides what proof is needed to show she has a mental health problem that makes this okay. Doctors' opinions are key, but it doesn't have to say 'unsound mind' exactly. The case also shows how hard it is to get this proof from family doctors.
Key Facts
- •KB, a middle-aged woman with a lifelong learning disability, lacks capacity to make decisions about her residence and care.
- •Her care package deprives her of her liberty.
- •No medical evidence of her mental disorder was initially available.
- •The case raises questions about the evidentiary requirements for 'unsoundness of mind' under Article 5(1)(e) of the ECHR and the need for medical evidence in Court of Protection applications.
- •Stockport MBC faces challenges in obtaining necessary medical evidence from GPs due to wording concerns, GP workload, and contractual obligations.
Legal Principles
In applications to authorise deprivation of liberty, the court must be satisfied that P suffers from unsoundness of mind, which refers to a mental disorder. The court assesses this based on the evidence before it.
This judgment
'Unsoundness of mind' under Article 5(1)(e) ECHR must be proved by sound medical evidence, usually from a medical doctor.
ECtHR jurisprudence
The definition of deprivation of liberty follows the ECtHR's definition in HL v United Kingdom (2004) and Cheshire West.
Cheshire West & Chester Council [2014] UKSC 19
Learning disability constitutes a mental disorder under the Mental Health Act 1983.
Mental Health Act 1983, s.1(2)
The COPDOL11/Re X procedure is a streamlined process for uncontentious cases, but more rigorous scrutiny is applied when complexities arise (e.g., diagnostic issues, disagreements about best interests).
Bolton Council v KL [2022] EWCOP 24
Outcomes
The court directs the applicant to obtain a report from a registered medical practitioner (GP or psychiatrist) regarding KB's diagnosis, capacity, and the duration of her condition.
To satisfy the evidentiary requirements for 'unsoundness of mind' under Article 5(1)(e) ECHR and ensure compliance with the MCA.
Interim declarations regarding KB's incapacity were made, pending the required medical evidence.
To avoid disproportionately dismissing the application for lack of evidence at an early stage.