Court clarifies evidential requirements for authorizing deprivation of liberty under Mental Capacity Act & ECHR

Citation: [2023] EWCOP 58
Judgment on


In Stockport Metropolitan Borough Council v KB & Ors [2023] EWCOP 58, the Court of Protection explores the criteria and evidential requirements necessary to authorise the deprivation of liberty of individuals suffering from mental disorders under the Mental Capacity Act 2005 (MCA) and the European Convention on Human Rights (ECHR), Article 5 (right to liberty and security). Specifically, the case delves into the definition of ‘unsound mind’ and the required medical evidence needed for the court’s determination.

Key Facts

KB is a middle-aged woman with a lifelong learning disability, residing in care arrangements that, while in her best interests, deprive her of her liberty. The key question is whether a medical diagnosis of ‘unsound mind’ is required for the court to authorise detentions under Article 5§1(e) and, if so, whether this evidence must come exclusively from a medical doctor. The applicant, Stockport MBC, faced difficulties in obtaining the necessary medical evidence from GPs reluctant to provide assessments they felt unqualified to conduct, leading to procedural complications and resulting in the court’s examination of the evidential issue.

The judgment by His Honour Judge Burrows reiterates the principles established in landmark cases such as Winterwerp v The Netherlands, which defined ‘unsound mind’ as an evolving legal term, and subsequent ECtHR jurisprudence that equates ‘unsound mind’ with mental disorder. The court highlighted that ‘unsound mind’ is not a constant medical diagnosis but a legal concept adapting over time.

The principles established in prior cases, such as Ilnseher v Germany and Rooman v Belgium, were applied, clarifying the necessity of a ‘true mental disorder’ established on objective medical expertise and the need for the disorder to be of such severity that compulsory confinement in a mental health institution is warranted.

In this context, the judgment addressed the application of the streamlined COPDOL11 procedure, commonly used for uncontentious cases of deprivation of liberty and authorised through form COPDOL11. The requirement for medical evidence on this form and the connotations of the term ‘unsound mind’ were scrutinised to evaluate the acceptability of evidence from non-medical professionals and the judicial responsibility to ensure compliance with Article 5 of the ECHR.


The court concluded that ‘unsound mind’ should be interpreted to mean a mental disorder, fulfilling Article 5§1(e), so long as the court is satisfied with the evidential basis. The judgment clarified that the exact words ‘unsound mind’ need not be used by a clinician in the medical evidence provided, so long as evidence of a mental disorder is reliably presented. Moreover, while the professional providing the evidence should typically be a medical doctor (a psychiatrist or GP), the necessity for a particular type of doctor (such as a Section 12-approved doctor) was dispelled. The judgment directed that in KB’s case, a report from a registered medical practitioner competent to opine on her condition must be provided.


The judgment in Stockport Metropolitan Borough Council v KB & Ors sheds light on the evolving nature of terms such as ‘unsound mind’ within the legal arena, indicating that precise medical terminology need not be used so long as the evidence suffices to demonstrate a mental disorder. It sets a precedent regarding the type and source of medical evidence required for court authorisation of deprivation of liberty, insisting on the importance of satisfying the legal criteria while affirming the protection of the liberties of the mentally disordered and those caring for them. The case thus reaffirms the necessity for clarity and evidence-based practice in the Court of Protection proceedings to ensure the rights and welfare of vulnerable individuals like KB are protected.

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