(Family Division; Sir Mark Potter P; 25 June 2008)

The wording of Mental Capacity Act 2005, ss 15(1)(c), 16, 17, 48 was plainly intended, and should be construed, as entitling the Court of Protection to make orders under the 2005 Act of the kind previously made by the judges of the Family Division under the inherent jurisdiction. Thus, where the facts so justified and the immediate welfare interests of an incapacitated adult so dictated, the court might, by a prior declaration in appropriate terms under s 6(1)-(4) of the Act, render lawful an act of restraint that might otherwise amount to a deprivation of liberty under s 6(5), thus bridging the Bournewood gap (Bournewood Community and Mental Health NHS Trust, ex p L [1999] 1 AC 458).