Judge: Mostyn J
Citation:  EWCOP 45
Mr Justice Mostyn is nothing if not brave. In a decision handed down on 18 November 2014, 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.
The case concerned a 52 year old woman, “Katherine,” cared for in 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 paragraph 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” (paragraph 14). He considered what J.S. Mill had to say upon the subject, noting that he considered that it “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 paragraph 76 of his concurring judgment) was that it was the state or condition of being free from external constraint. Mostyn J further latched onto the discussion at paragraphs 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 paragraph 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:
“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” (paragraph 22)
“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.” (paragraph 23)
“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” (paragraph 25)
Mostyn J emphasised that he was not holding that a person could never
“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, Article 5 is simply not engaged” (paragraph 26, footnote in the original)
Mostyn J then held that the “matter” (by which we 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. As the Council did not agree to a leapfrog, the matter will be going to the Court of Appeal (no date yet having been fixed of which we are aware).
This is – to put it mildly – a striking decision, which 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.
The decision lays bare the philosophical debate as to the meaning of “liberty,” and it is clear that Mostyn J considers that J.S. Mill would have been astonished to find that any of P, MIG or MEG were deprived of their liberty. Further, there are also entirely proper grounds upon which to be concerned as to the resource impact of the decision. In a fascinating speech given in October 2014 by Lady Hale discussing (inter alia) the decision, she noted that it had “alarming” practical consequences, because “a great many elderly and mentally disabled people, wherever they are living, must have the benefit of safeguards and reviews, to ensure that their living arrangements are indeed in their best interests.” There may be arguments that need ultimately to be resolved through the democratic process as to the allocation of resources to such safeguards.
However, from a legal perspective, the decision is deeply problematic because it flies in the face of the decision of the majority in the Supreme Court.
Mostyn J’s conception of freedom to leave is fundamentally predicated upon a concept 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 Mostyn J’s 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 (see the discussion at paragraphs 33-36 of the judgment in Cheshire West).
Further, it seems to us that Mostyn J was on thin ice in holding that the Supreme Court had held that “freedom to leave” defined solely in the “macro” terms said to have been identified by Munby J in JE v DE. In the same speech given by Lady Hale noted above, and in the course of discussing the situations of P, MIG and MEG, she noted that:
“they were under the complete control of the people looking after them and were certainly not free to go, either for a short time or to go and live somewhere else” (emphasis added).
Whilst, of course, Lady Hale was not speaking in a judicial capacity, at the very least it suggests that she does not consider that the majority held that freedom to leave was only relevant in the ‘macro’ sense.
Taking a step back, and even applying Mostyn J’s analysis of the ‘ordinary’ person able to take advantage of their liberty, we would suggest that an ‘ordinary’ person who was unable to come and go from the place that they live as they see fit would undoubtedly consider themselves to be deprived of an important right. We note in this regard that the Grand Chamber of the European Court of Human Rights placed very considerable emphasis in Stanev on the fact that Mr Stanev was not able to leave the care home for such purposes as visiting the nearby village “whenever he wished” (i.e. not merely for purposes of permanently relocation) in finding that he was deprived of his liberty (see in particular paragraphs 124-128). This is also entirely consistent with the approach adopted in KC v Poland discussed below.
Finally, we would suggest that it would be a very striking consequence (and one on its face entirely incompatible with the decision of the Supreme Court) if – as a matter of principle – any arrangements made by a local authority or CCG to care for an individual in their own home could not amount to a deprivation of that individual’s liberty if that individual was not physically able to leave that home because of their own disabilities. It only requires a moment’s translation of those arrangements to another setting that was not, formally, their own home but was (say) a supported living placement (or indeed, a private care home) which the adult regarded as ‘home’ to make clear the impossibility of squaring this decision with that of the Supreme Court.
Whilst it is, of course, for all those reading this Newsletter to seek their own legal advice as to whether to follow Mostyn J’s decision, we would, at a minimum, suggest that any cases where a decision is taken not to apply to the Court of Protection on the basis of the judgment are clearly identified so that rapid remedial action can be taken if and when the Court of Appeal reverse it.
On a personal note, we would also just hope that any appeal can be resolved speedily so that social care and health care staff can simply get on with trying to do the job that the majority of them wish to do, namely to seek to make arrangements for some of the most vulnerable in society that are actually predicated upon considerations of what is in their best interests.
KW’s appeal against this decision was allowed by consent by the Court of Appeal in early February 2015, without any accompanying judgment to explain the Court of Appeal’s reasoning in endorsing the consent order.
[] “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.”