A High Court judge has called on the Supreme Court to reconsider the approach laid down in Cheshire West on deprivations of liberty within the home.
In Rochdale Metropolitan Borough Council v KW & Ors (Rev 1)  EWCOP 45 Mr Justice Mostyn was asked to determine whether the arrangement made for the care of the first respondent, KW ("Katherine"), in her own home, by the council amounted to a deprivation of liberty within the terms of Article 5 of the European Convention on Human Rights (the right to liberty and security). That arrangement was approved by the judge pursuant to section 15 Mental Capacity Act 2005.
“If it does amount to a deprivation of liberty then my order will have to provide for periodic reviews by this court,” the judge said. “Such reviews plainly have significant resource implications for this hard pressed local authority. Every pound spent on such reviews is a pound less for other vitally necessary projects.”
The factual background to the case is that Katherine is aged 52 and severely mentally incapacitated. She suffered brain damage while undergoing surgery to correct arteriovenous malformation in 1996, when aged only 34. This resulted in a subarachnoid haemorrhage and long-term brain damage.
Katherine was left with cognitive and mental health problems, epilepsy and physical disability. She was discharged from hospital into a rehabilitation unit and thence to her own home, a bungalow in Middleton, with 24/7 support.
Katherine was admitted to various hospitals and then a care home. During her confinement in the latter, she suffered an unlawful deprivation of liberty during those periods when her confinement was not authorised under the MCA. Her claim was settled with modest compensation and a written apology. The judge approved the terms of the settlement.
Commenting on her condition and her current arrangements, Mr Justice Mostyn said: “Physically, Katherine is just ambulant with the use of a wheeled Zimmer frame. Mentally, she is trapped in the past. She believes it is 1996 and that she is living at her old home with her three small children (who are now all adult). Her delusions are very powerful and she has a tendency to try to wander off in order to find her small children.
“Her present home is held under a tenancy from a housing association. The arrangement entails the presence of carers 24/7. They attend to her every need in an effort to make her life as normal as possible. If she tries to wander off she will be brought back. The weekly cost of the arrangement is £1,468.04. Of this £932.52 is paid by Rochdale and £535.52 by the local NHS Clinical Commissioning Group.”
Counsel for Katherine considered that having regard to the majority decision of the Supreme Court in Cheshire West and MIG and MEG cases, this was a deprivation of liberty situation. The barrister for Rochdale was “constrained to concur”.
But the judge said he did not agree. “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.”
Mr Justice Mostyn added: “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.”
The judge continued: “It has been said that a consequence of the Supreme Court decision is that there will be tens, if not hundreds, of thousands of similar cases requiring Court of Protection authorisation and periodic reviews. This is not surprising as the facts of this case are unremarkable.”
Mr Justice Mostyn accepted that the opinions of the majority of Supreme Court justices in Cheshire West were binding on him and that he must follow them.
But he added that he would have personally agreed with the view of Parker J and the Court of Appeal in MIG and MEG.
The judge described Katherine's ambulatory functions as very poor and deteriorating. “Soon she may not have the motor skills to walk even with her frame. If she becomes house-bound or bed-ridden it must follow that her deprivation of liberty just dissolves.”
He continued: “It is often said that one stress-tests a proposition with some more extreme facts. Imagine a man in hospital in a coma. Imagine that such a man has no relations demanding to take him away. Literally, he is not ‘free to leave’. Literally, he is under continuous supervision. Is he in a situation of deprivation of liberty? Surely not. So if Katherine cannot realistically leave in the sense described above then it must follow that the second part of the acid test is not satisfied.” [The ‘acid test’ is discussed at various stages of the Supreme Court decision in Cheshire West]
Mr Justice Mostyn said: “I am of the view that for the plenitude of cases such as this, where a person, often elderly, who is both physically and mentally disabled to a severe extent, is being looked after in her own home, and where the arrangements happen to be made, and paid for, by a local authority, rather than by the person's own family and paid for from her own funds, or from funds provided by members of her family, Article 5 is simply not engaged.”
After Rochdale informed him that it would not consent to a leapfrog certificate to transfer the case to the Supreme Court, Mr Justice Mostyn granted permission to Katherine to take the case to the Court of Appeal.
“I would like to think that the Court of Appeal will very speedily and shortly dispose of the appeal and grant permission to appeal to the Supreme Court,” the judge said. “But that will be for them.”
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