Greater clarity for social workers on legal definition of deprivation of liberty as case settles

A potential challenge to the Supreme Court’s ruling on deprivation of liberty in the landmark “Cheshire West” case has been averted, bringing greater clarity for social workers in interpreting the law.

The Court of Appeal has agreed to a settlement in the case of Rochdale MBC vs KW, which was referred to it in December, after a judgement in the Court of Protection which appeared to challenge the Supreme Court’s ruling. This means that the case will not go to the Supreme Court for a potential revisiting of its decision in P v Cheshire West and Chester Council and P&Q v Surrey County Council last March

The acid test

In that case, the Supreme Court famously laid down an “acid test” – based on previous case law – for determining a deprivation of liberty in care for someone lacking the capacity to consent. This specified that a person:

• should be under continuous supervision and control; and
• not free to leave the place they were in; and
• their confinement should be the responsibility of the state.

The Supreme Court also made clear that such a deprivation of liberty would apply in a domestic setting, as well as in health or social care placements.

What Court of Protection judge ruled

The KW case concerned a 52-year-old, physically disabled woman with mental health and cognitive problems and epilepsy, known as “Katherine”,  receiving round-the-clock care at home.

Both Katherine, through a litigation friend, and Rochdale Council, which co-funds her care with the local clinical commissioning group, contended that this amounted to a deprivation of liberty on the basis of the Supreme Court’s judgement, which required authorsiation by the Court of Protection.

However, in December, Mr Justice Mostyn ruled that this was not a deprivation of liberty because the “acid test” was not met. Katherine’s “freedom to leave” her own home was not being constrained because she did not have the “physical or mental ability to exercise that freedom” as her mobility was so poor that she may soon become house-bound.

Mr Justice Mostyn stressed he was bound by the Supreme Court judgement and compliant with it, but that “the matter should be reconsidered by the Supreme Court”. Following his judgement, Katherine’s counsel mounted an appeal, which the judge granted.

Mr Justice Mostyn said he hoped the Court of Appeal “would shortly dispose of the appeal and grant permission to appeal to the Supreme Court”.

Settlement confirms deprivation of liberty

However, on his blog yesterday, leading Court of Protection barrister Alex Ruck Keene reported that the Court of Appeal had allowed the appeal by consent, meaning there will be no hearing and that that both sides have agreed that Katherine is deprived of her liberty.

Ruck Keene suggested that this means “that practitioners can now proceed on the basis that Mostyn J’s conclusions as to what “freedom to leave” means can be treated with extreme caution at best, if not consigned to history entirely”.

He said this may count as “a rare bit of good news in the battle for clarity as to what constitutes a deprivation of liberty”. This view was endorsed by the Court of Protection team at solicitors Clarke Wilmott

But it added: “It  is disappointing that we have no judgment to really get to grips with the reasons as to why. Some are calling for written reasons as to why the consent order was agreed, which might provide us with some of the answers. We wait to see if this will be provided.”

Council failings

The news follows two cases of serious failings by councils in relation to deprivation of liberty:

• Essex Council agreed earlier this month to pay a 91-year-old man £60,000 in compensation for unlawfully depriving him of his liberty for over 13 months.
• Cambridgeshire Council was heavily criticised by the Local Government Ombudsman last week for moving a man into a care home without an adequate mental capacity assessment or best interests decision, and possibly depriving him of his liberty unlawfully.