family law, deprivation of liberty, Cheshire West, Rochdale MBC v KW [2014] EWCOP 45, Mostyn J
Mr Justice Mostyn is nothing if not brave. In a decision handed down on 18 November
2014:
Rochdale MBC v KW [2014] EWCOP 45, he took on the Supreme Court in
Cheshire West and demanded that it 'reconsider' the application of Article 5
ECHR in the context of deprivation of liberty at home (if not indeed more
broadly).
Summary
The case concerned a 52-year-old woman, 'Katherine', cared
for in her own home. As a result of a
subarachnoid haemorrhage sustained during a medical operation many years
previously, she had cognitive and mental health problems, epilepsy and physical
disability. At the time that the matter
came before Mostyn J, she was cared for in her own home with a package of 24/7
care funded jointly by Rochdale MBC and the local CCG. Mr Justice Mostyn described her situation
thus:
'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 [arranged by an independent contractor]. 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.'
Before Mr Justice Mostyn, both the local authority and KW
(by her litigation friend Celia Walsh) agreed that the decision of the majority
in
Cheshire West compelled the conclusion that she was deprived of her liberty
(the local authority being said to ‘constrain to concur’ with this conclusion).
Mostyn J decided to the contrary, holding (at para [7])
that he:
'[found] 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. 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 order to reach this conclusion, Mostyn J embarked upon
his own analysis of the meaning of Article 5 ECHR and of the concept of
liberty, holding that the first question he had to ask was what '"liberty" was
for Katherine'. This was, he acknowledged,
a 'big question' (para [14]). He
considered what J.S. Mill had to say upon the subject, noting that he
considered that it was 'inconceivable' that Mill would have found that the
provision of care to Katherine in her own home involved an encroachment on her
liberty – and that he would have taken the same view of each the of three cases
that were before the Supreme Court in
Cheshire West.
In addressing the question of how the Supreme Court
addressed this issue, Mostyn J stated he considered (and noted in this that
counsel before him agreed) that Lord Kerr was the only one of the Supreme Court
to grapple with the question, and that the answer that Lord Kerr gave (at
para [76] of his concurring judgment) was that it is the state or condition of
being free from external constraint.
Mostyn J further latched onto the discussion at paras [76]-[79] of Lord
Kerr’s concurring opinion of the comparison to be made between the extent of
the individual’s 'actual freedom' with that of someone of that person’s age and
station whose freedom is not limited.
The fundamental – philosophical – disagreement Mostyn J had
with the judgment of the Supreme Court is laid bare at para [17]:
'It is clear that the driving theme of the majority opinions
is a denunciation of any form of discrimination against the disabled. With that
sentiment I naturally wholeheartedly agree. Discrimination is found where like
cases are not treated alike. However, when making Lord Kerr’s comparison you do
not have two like cases. You are comparing, on the one hand, a case where an 18
year old does not need protection and, on the other, a case where the 18 year
old does. They are fundamentally dissimilar. The dissimilarity justifies
differential treatment in the nature of protective measures. For me, it is
simply impossible to see how such protective measures can linguistically be
characterised as a “deprivation of liberty”. The protected person is, as Mill
says, merely “in a state to require being taken care of by others, [and] must
be protected against their own actions as well as against external injury”. And
nothing more than that. In fact it seems to me to be an implementation of the
right to security found in Article 5.' (Emphasis in original)
Mostyn J made very clear he agreed with the opinions of the
minority in the Supreme Court (and those lower courts that were in line with
them), but – properly – recognised that he was bound by the majority. He, however, distinguished Katherine’s
situation on the following bases:
(1) 'Freedom to leave' in the objective test of confinement
did not mean 'wandering out of the front door' but leaving in the sense of
permanently removing oneself to live where and with whom one likes (para [20], relying upon the dicta of Munby J in
JE v DE and Surrey County Council
[2006] EWHC 3459 (Fam),
[2007] 2 FLR 1150 per Munby J at para [115], which Mostyn
J considered to have been 'implicitly approved' in the Supreme Court at para [40]).
(2) Freedom to leave
therefore must mean that the person has the physical capacity to leave. In a
passage that will no doubt be pored over carefully in due course, Mostyn J
noted that:
'Katherine’s ambulatory functions are very poor and are
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. 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.' (para [22])
(3) Katherine’s
situation could be distinguished from MIG’s (even though both were being cared
for at home) because:
'By contrast MIG was a young woman with full motor
functions, notwithstanding her problems with her sight and hearing. She had the
physical capacity to leave in the sense described. She had sufficient mental
capacity to make the decision to leave, in the sense described. If she tried
she would be stopped. Therefore, it can be seen that in her case both parts of
the acid test was satisfied.' (para [23])
(4) As a factual finding, Katherine 'not in any realistic way
being constrained from exercising the freedom to leave, in the required sense,
for the essential reason that she does not have the physical or mental ability
to exercise that freedom' (para [25]).
Mostyn J emphasised that he was not holding that a person:
'could never to be deprived of his liberty by confinement in
his or her own home. In the field of criminal law this happens all the time.
Bail conditions, or the terms of a release from prison on licence, routinely
provide for this. However, 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[1], Article 5 is simply not
engaged.' (paragraph 26, footnote in the original)
[1] There is also the problematic question of whether the
State is involved in a private arrangement if benefits, such as attendance
allowance, are paid to help with the care of the protected person.
Mostyn J then held that the 'matter' (by which I presume he
means the application of Article 5 in this context) 'should be reconsidered by
the Supreme Court'. Mostyn J held that he
considered that a 'leapfrog' appeal to the Supreme Court was technically
possible (if the council agreed), but made alternative provision for extending
time to seek permission to appeal from the Court of Appeal.
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