We reported on the initial hearing in this case when Mostyn J called into question the definition of deprivation of liberty laid down in Cheshire West, particularly as it applies to individuals in their own homes, and called upon the Supreme Court to review the situation.

Read our original article here.

Background

KW (referred to in the judgment as Katherine) had suffered brain damage while undergoing surgery in 1996 and was left with severe cognitive and mental health problems, epilepsy and physical disability. KW’s ambulatory functions are poor and deteriorating. She is just about mobile with the use of a wheeled Zimmer frame. Mentally she believes it to be 1996 and that her children are still young. When she attempts to leave her home and find them she is brought back. She requires 24/7 care from an independent contractor, the cost of which is divided between the Local Authority and the CCG.

Mostyn J had expressed the view in his first ruling that KW was not deprived of her liberty. He held that the second part of the ‘acid test’ (whether the person is ‘not free to leave’) was not satisfied. He stated that Katherine ‘is not in any realistic way 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’. Mostyn J had felt the issue of such import, that it should be referred to the Supreme Court. However, Rochdale MBC refused to give the necessary consent. Instead the appeal was made to the Court of Appeal.

Court of Appeal

The Court of Appeal allowed the case by way of consent without a hearing. Counsel for the appellant submitted a statement of reasons for allowing the appeal, including that the judge had erred in law in his initial judgment in holding that there was not a deprivation of liberty and that he was bound by the decision in Cheshire West.

The Order made by the Court of Appeal states that ‘to the extent that the restrictions in place pursuant to the Care Plan are a deprivation of KW’s liberty, such deprivation of KW’s liberty is hereby authorised’.

Second Court of Protection hearing

The case returned to the Court of Protection to be considered again by Mostyn J. 

Mostyn J challenged the approach taken by the Court of Appeal and argued that an appeal cannot be disposed of by consent where there are matters to be determined on the merits of the case. The issue as to whether or not KW was deprived of her liberty required a determination of the merits of the case. In that case, Mostyn J indicated that there should have been a full hearing with a judgment. As it is, there has been no further determination by the Court of Appeal as to whether KW and others like her are deprived of their liberty.  Mostyn J points out that in making the order quoted above, the Court of Appeal has not determined whether or not KW is in fact deprived of her liberty, because of the conditional language.

In respect of KW, the judge held that they are now back to square one, with no one knowing whether or not KW is being deprived of her liberty. That issue will need to be decided at the next review hearing and until then, Mostyn J indicated that KW’s status is to be regarded as in limbo.

Implications

Mostyn J’s attempts to clarify the law and challenge the wide interpretation of deprivation of liberty following the Cheshire West judgment will be welcomed by many. The far-reaching implications of Cheshire West continue to be felt by all organisations involved in caring for people who lack capacity.

If the KW case, or other challenges to the Cheshire West definition of deprivation of liberty, can be determined in the Court of Appeal or Supreme Court, that would provide some much needed legal clarity. Until then, the position is best summarised by Mostyn J himself in the final paragraph of his judgment:

‘In this difficult and sensitive area, where people are being looked after in their own homes at the state’s expense, the law is now in a state of serious confusion.’

Should you want to read the judgment in full, please click here.