(Court of Protection) The court was asked whether, if P could be found to lack mental capacity where he should live, where there was an essential conflict between representatives of the State who owe statutory duties to P on the one hand, and the view of his carer of 18-plus years standing on the other, and further issues in relation both to Articles 8 and 5 of the European Convention of Human Rights.
Held: P did indeed lack capacity.
It was in P’s best interests to live in independent living accommodation, with his contact with his mother restricted. The court acknowledged that these arrangements amounted to a deprivation of P’s liberty within Article 5(1) of the ECHR, taking 5 factors into account:
1) The degree of control to be exercised by the staff.
2) The constraint on P leaving if it was his intention to go back to AH.
) The power of the staff to refuse a request from AH for the discharge of P to her care.
4) Necessary restraints on contact between P and AH.
5) It involved a fairly high degree of supervision and control within the placement.
 EW Misc 10 (EWCOP),  1 FLR 287,  MHLR 281, (2010) 13 CCL Rep 636
European Convention on Human Rights 5 8, Mental Capacity Act 2005 16(2)(a)
England and Wales
At CoP – P (By His Litigation Friend The Official Solicitor) v Cheshire West and Chester Council and Another and similar SC 19-Mar-2014
Deprivation of Liberty
P and Q were two adolescent sisters without capacity. They complained that the arrangements made for their care amounted to an unjustified deprivation of liberty, and now appealed against rejection of their cases. In the second case, P, an adult . .
Lists of cited by and citing cases may be incomplete.
Health, Human Rights
Updated: 09 November 2021; Ref: scu.427418