Mostyn J has clearly struggled with the implications of the judgment in Cheshire West in a recent case and in particular that individuals who are living in their own private homes may be considered to be deprived of their liberty.
Rochdale Metropolitan Council -v- KW  EWCOP 45
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 stated 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.’ In his opinion, applying Article 5 in this way would be ‘a league away from the intentions of the framers of the Convention’. He went so far as to say that the arrangements for Katherine were actually an implementation of the right to security found in Article 5 ECHR, as she is ‘in a state to require being taken care of by others [and] must be protected’.
In Mostyn J’s view, the second element of the acid test, whether she is ‘not free to leave’, from Cheshire West was not satisfied in this case. He indicated that “Free to leave does not just mean wandering out of the front door. It means leaving in the sense of removing [herself] permanently in order to live where and with whom [she] chooses.” This definition of ‘free to leave’ which comes from the case of JE -v- DE  2 FLR 1150, para 115, does have some support from Lady Hale herself, who implicitly approves it at Paragraph 40 of Cheshire West. Mostyn J then went further, stating that “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”.
Mostyn J felt the matter of such importance that it should be reconsidered as soon as possible by the Supreme Court by ‘leap-frogging’ the Court of Appeal. However, it is now understood that the case is to be heard by the Court of Appeal.
It is clear that in this decision Mostyn J is attempting to reign in the effects of Cheshire West and he acknowledges the burden that these applications are putting on the resources in his opening paragraph, stating that ‘every pound spent on such reviews is a pound less for other vitally necessary projects’. This is a policy decision - and a brave one, given how it conflicts with the majority decision in Cheshire West. It is interesting to note that Mostyn J used the comparator of a man in a coma, with no family attempting to remove him, concluding that he is ‘surely not’ deprived of his liberty despite not being free to leave and under constant supervision. However, this does conflict somewhat with the judgment of Lady Hale at paragraph 35 of Cheshire West where she says ‘…. an unconscious or sleeping person may not know that he has been locked in a cell, but he has still been deprived of his liberty.’
Many practitioners in the NHS and local authorities will welcome the attempts of Mostyn J to narrow the definition of deprivation of liberty and take a more common sense approach. Nevertheless there are many are concerned at the attempt to chip away at what was a landmark decision protecting fundamental freedoms for disabled people. The decision in KW has reintroduced uncertainty as to whether there is a deprivation of liberty at home and we now await guidance from the higher courts on this issue before CCG’s and local authorities can be confident that authorisation is not required in these situations.