23.34North Yorkshire CC and A Clinical Commissioning Group v MAG and GC [2016] EWCOP 5, (2016) 19 CCLR 169
The MN principle also applied in the context of alleged deprivations of liberty
Facts: MAG was a severely disabled 35-year-old man who lacked capacity and whose flat, provided by North Yorkshire and the local Clinical Commissioning Group, was grossly unsuited to his needs, such that his residence there amounted to a deprivation of MAG’s liberty. DJ Glentworth refused to authorise this deprivation of liberty, pending the authorities re-locating MAG to more suitable accommodation where his occupation would not result in a deprivation of liberty.
Judgment: Cobb J allowed the authorities’ appeal and held that (i) it was in MAG’s best interests to live in his flat for the time being, in the absence of any other residence being available that offered less restriction; (ii) MAG’s flat and care provision did not breach his rights under Article 5 of the ECHR, therefore he was not being deprived of his liberty unlawfully; (iii) MAG may well have had a public law claim against North Yorkshire, but it had been illegitimate of the DJ to decline to authorise MAG’s deprivation of liberty in order to pressurise North Yorkshire into providing more suitable accommodation. Cobb J held that the approach in
Re MN (An Adult)1[2015] EWCA Civ 411, (2015) 18 CCLR 521.(see para
23.30 above) applied equally to cases where personal liberty and Article 5 of the ECHR were at stake:
37. The passage quoted in full above from the supplementary judgment does not, in my view, explain paragraph 28 of the principal judgment. DJ Glentworth sought to make a distinction between welfare decisions (as in Re MN) and decisions involving deprivation of liberty (as here), but I find her reasoning unconvincing. She identifies no passage in the judgment in Re MN which purports to limit its scope, nor does she identify any proper basis for asserting that the guidance in Re MN as to the limits of the court of Protection’s role is irrelevant where Article 5 is engaged. Her reasoning and conclusion is the more surprising given that deprivation of liberty issues which arise in these circumstances (under section 4A(4) and section 16(2)(a) of the MCA 2005) arise specifically in the context of the court’s consideration of welfare and proportionality which in turn specifically engage the fundamental principles confirmed and discussed at length in Re MN (see also Charles J in Re NRA & Others (above: [25]) at [41(i)]: ‘the determinative test on an application for a welfare order to authorise a deprivation of liberty is a best interests test’). If there is any doubt (which in my view there is not) it is useful, as Ms Morris argued, to check this against the directly analogous situation if MAG had been resident in residential care. In such circumstances, NYCC would have had to apply for standard authorisation under Schedule A1 of the MCA 2005; standard authorisation would have to be in P’s best interests (para 12 and 16(3)), and a ‘proportionate response’ to the likelihood of ‘the relevant person suffering harm and the seriousness of that harm’ (para 16(5) of Schedule A1 of the MCA 2005). Ms Morris makes good her submission that the requirement of proportionality must similarly apply to a determination under section 4A and section 16 and that Re MN applies across all welfare determinations, including those which involve deprivation of liberty.