A Court of Protection judge has called for the Supreme Court to reconsider its ruling on what constitutes a deprivation of liberty, challenging the landmark decision made in March on this issue.
Mr Justice Mostyn’s decision in the Court of Protection, in the case of Rochdale MBC vs KW, has been met with concern by lawyers and charities. They fear the ruling will create more confusion about what constitutes a deprivation of liberty, which in turn could undermine essential protections for vulnerable people.
The Supreme Court’s judgement in the cases of P v Cheshire West and Chester Council and P&Q v Surrey County Council in March was supposed to have cleared up what is meant by a deprivation of liberty.
In that judgement, Lady Hale outlined specific criteria that define when a person is deprived of their liberty: if they are not free to leave and if they are under continuous supervision and control. Lady Hale also listed three criteria that are categorically not relevant to the assessment: the 'relative normality' of a person's circumstances; the reasons or motives behind the circumstances; and whether or not the person objects to the living arrangements.
The case Mr Justice Mostyn was presiding over concerned KW – or Katherine – 52-year-old woman with cognitive and mental health problems, epilepsy and physical disability, who receives round-the-clock care at home, funded jointly by Rochdale Council and the local clinical commissioning group (CCG).
Katherine, through a litigation friend, and Rochdale Council, contended that this amounted to a deprivation of liberty on the basis of the Supreme Court’s judgement in Cheshire West. Any such deprivation in a domestic setting must be authorised by the Court of Protection, which Rochdale had applied to do.
However, Mr Justice Mostyn ruled that this was not a deprivation of liberty. He said that Katherine’s “freedom to leave” her own home was not being constrained because she did not have the “physical or mental ability to exercise that freedom” as her mobility was so poor that she may soon become house-bound.
“I find it impossible to conceive that the best interests arrangement for Katherine, in her own home, provided by an independent contractor, but devised and paid for by Rochdale and CCG, amounts to a deprivation of liberty within Article 5,” said Mr Justice Mostyn. “If her family had money and had devised and paid for the very same arrangement this could not be a situation of deprivation of liberty. But because they are devised and paid for by organs of the state they are said so to be, and the whole panoply of authorisation and review required by Article 5 (and its explications) is brought into play. In my opinion this is arbitrary, arguably irrational, and a league away from the intentions of the framers of the Convention.”
In an analysis of the decision on the blog Mental Capacity Law and Policy barrister Alex Ruck Keene described Judge Mostyn’s decision as “striking” adding that it will “… unfortunately, do nothing in the short run to assist those who are trying to provide guidance to front-line social work and clinical staff as to how properly to discharge their functions.”
Ruck Keene added: “… whilst there are undoubtedly grounds upon which proper philosophical arguments can be had as to the meaning of liberty, the decision to me would seem to me to be deeply problematic because it flies in the face of the decision of the majority in the Supreme Court.”
In addition, Ruck Keene said that Mr Justice Mostyn’s conception of freedom to leave “is fundamentally predicated upon a concept that of liberty that is dependent upon a person’s ability to exercise that right, either themselves or by another. A person who is severely physically disabled – and therefore house-bound – could not, on [his] analysis, be considered to be deprived of their liberty. It is, however, extremely difficult to square that analysis with the conclusion of Lady Hale (with whom Lord Kerr agreed) that liberty must mean the same for all, regardless of whether they are mentally or physically disabled.”
Sarah Lambert, Head of Policy at the National Autistic Society (NAS), was also concerned by the decision: “The Supreme Court’s landmark ruling in March was a huge victory for the rights of vulnerable people, providing an acid test for what counts as a deprivation of liberty,” she said.
“However, the decision in the Court of Protection this week appears to directly contravene the Supreme Court's ruling that liberty must mean the same for all, regardless of disability. Any move to revisit or unpick this definition would be a huge step back.
“The NAS is deeply concerned that this decision will create avoidable confusion and uncertainty among health and social care professionals, potentially undermining essential protections for people with autism. The Court of Protection decision is being appealed and we hope this is successful, reaffirming the hard won Supreme Court ruling in March.”