Confusion for social workers as judge urges Supreme Court to reconsider deprivation of liberty stance

Social workers face confusion after a judge urged the Supreme Court to reconsider its view on deprivation of liberty laid down in the landmark Cheshire West judgement.

Mr Justice Mostyn’s decision in the Court of Protection, in Rochdale MBC vs KW, has sparked concerns that social workers and health professionals will face greater difficulty in applying the law on a deprivation of liberty.

This was supposed to have been settled by the Supreme Court’s judgement in the two cases of P v Cheshire West and Chester Council and P&Q v Surrey County Council handed down in March.

The acid test

This famously said that disabled people had the same right to liberty – under Article 5 of the European Convention on Human Rights – as everyone else. It also 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 in Cheshire West. Any such deprivation in a domestic setting must be authorised by the Court of Protection, which Rochdale had applied to do.

However, 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.

While he said that he did not mean that people could not be deprived of their liberty in their own home, a deprivation did not apply in 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”.

Mr Justice Mostyn stressed he was bound by the Supreme Court judgement and compliant with it, he said “the matter should be reconsidered by the Supreme Court”. Following his judgement, Katherine’s counsel mounted an appeal, which the judge granted. The case will now be heard by the Court of Appeal and Mr Justice Mostyn said he hoped this court “would shortly dispose of the appeal and grant permission to appeal to the Supreme Court”.

Judgement ‘flies in the face of’ Cheshire West

In an analysis of the judgement for his Mental Capacity Law and Policy blog, leading barrister Alex Ruck Keene said Mr Justice Mostyn’s judgement “flies in the face of the decision of the majority in the Supreme Court”. He said it was “extremely difficult” to square Mr Justice Mostyn’s view that a person could not be deprived of their liberty in their own home if house-bound with the Supreme Court’s judgement that “liberty must mean the same for all, regardless of whether they are mentally or physically disabled”.

Ruck Keene warned of the consequences for social workers and health professionals. “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.”

He added: “I would 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.”

The judgement also prompted concern from the National Autistic Society.

“The decision in the Court of Protection this week appears to directly contravene the Supreme Court’s ruling that liberty must mean the same for all, regardless of disability,” said head of policy Sarah Lambert. “Any move to revisit or unpick this definition would be a huge step back.”
“The NAS is deeply concerned that this decision will create avoidable confusion and uncertainty among health and social care professionals, potentially undermining essential protections for people with autism. The Court of Protection decision is being appealed and we hope this is successful, reaffirming the hard won Supreme Court ruling in March.”