In a recent case, the Court of Appeal held that when determining issues under the Mental Capacity Act 2005, a judge should first use the checklist of factors in section 4 of the Act to assess the best interests of the incapacitated adult, and then ask whether the resulting conclusion was a violation of that person’s rights under ECHR article 8.

The case involved a 28 year old (L) who was mildly retarded and had been living with his brother and father (K). K appealed against a decision by his local authority that L should move for a trial period to supported local authority accommodation. K acknowledged that there was a need eventually for L to move to allow him greater independence, but did not agree with the local authority about when this should happen.

K argued that the judge’s starting point should be L’s right to family life with his father and brother under article 8. The issue in dispute was therefore whether an incapacitated adult’s rights under article 8 should be given precedence over other relevant considerations, or whether it should simply be treated as one of “all the relevant circumstances” that the court should take account of under section 4 of the Mental Capacity Act 2005.

The appeal was dismissed. It was held that the safe approach for a judge was to apply the checklist in section 4 and then examine whether the resulting decision amounted to a violation of article 8 and whether that violation was nonetheless necessary and proportionate.

K v (1) LBX (2) L (By his litigation friend the Offi cial Solicitor) (3) M (2012)