Judge makes second call for Supreme Court to reconsider Cheshire West due to “serious confusion” in law

A Court of Protection judge has made a second call for the Supreme Court to reconsider its landmark Cheshire West ruling to deal with “serious confusion” in the law on deprivation of liberty.

In a series of judgements, the latest of which was issued yesterday, Mr Justice Mostyn has questioned the Cheshire West ruling, which was handed down last March, as well as its applicability to people receiving care in their own home.

The acid test

The Supreme Court’s famous ‘acid test’ in P v Cheshire West and Chester Council and P&Q v Surrey County Council stated that a person was deprived of their liberty under Article 5 of the European Convention on Human Rights if:-

• they lacked the capacity to consent to their care arrangements;
• they were under continuous supervision and control;
• they were not free to leave the place they were in; and
• their confinement was the responsibility of the state.

These provisions applied whether a person was in a care home or hospital – and thus eligible for the Deprivation of Liberty Safeguards – or receiving care in their own home or a community placement, for example in supported living.

But while being bound by the Cheshire West ruling – as it was imposed by the UK’s highest court – Mr Justice Mostyn has raised criticisms of it in four separate judgements, the latest of which was published yesterday.

Latest ruling

In Bournemouth BC v PS and DS, he ruled that a man with autism and associated challenging behaviour – known as ‘Ben’ – was not deprived of his liberty in the bungalow in which he received round-the-clock care from staff.

The judge ruled that Ben was not under continuous supervision because his carers afforded him “appreciable privacy” and he was free to leave because, if he did go, his carers would seek to persuade him to return rather than coerce him. If he refused, a Mental Health Act assessment would be considered and if this proved unsuccessful the police would be asked to exercise their powers under section 136 of the Mental Health Act to remove him to a place of safety. Mr Justice Mostyn said that unless and until this happened, “Ben is a free man”.

Since Cheshire West, councils have been expected to assess the placements of people living in the community to identify whether they were potentially being deprived of their liberty, and if so, to seek authorisation for this from Court of Protection. Bournemouth Council brought Ben’s case on this basis.

Staggering resource implications

But in his ruling, Mr Justice Mostyn said the resource implications of local authorities bringing such cases was “staggering”, despite the introduction of a streamlined procedure by the Court of Protection – under an amendment to its rules – to deal with them.

Concluding his judgement in  Ben’s case, he said: “In the light of the decision of the Supreme Court local authorities have to err on the side of caution and bring every case, however borderline, before the court. For if they do not, and a case is later found to be one of deprivation of liberty, there may be heavy damages claims (and lawyers’ costs) to pay. I remain of the view that the matter needs to be urgently reconsidered by the Supreme Court.”

He previously asked the Supreme Court to reconsider Cheshire West in his judgement in Rochdale MBC v KW , last November. In this he ruled that a 52-year-old severely mentally incapacitated and physically disabled woman living in rented accommodation – “Katherine” – was not deprived of her liberty. He said her freedom to leave her home – in terms of going to live elsewhere – was not constrained because she lacked the mental or physical ability to exercise that freedom because of the extent of her disabilities.

Disagreement with Cheshire West

In this case he said that he disagreed with the Cheshire West ruling though was bound to apply it. He also said that in “the plenitude of cases” where a severely mentally and physically disabled person was receiving care at home commissioned by a local authority they would not be deprived of their liberty under Article 5.

Mr Justice Mostyn allowed Katherine’s lawyer to mount an appeal, envisaging that it would be heard quickly by the Court of Appeal and then referred to the Supreme Court so the Cheshire West ruling could be reconsidered.

However, the Court of Appeal upheld Katherine’s appeal without a hearing and issued an order saying that, to the extent that her care plan constituted a deprivation of liberty, this was authorised for 12 months unless her care plan changed. This meant the case was not heard by the Supreme Court.

The Court of Appeal’s decision to  allow the appeal without a hearing was strongly criticised by Mr Justice Mostyn in a second judgement on the Rochdale case issued in March. He said that Katherine’s status was now “in limbo” as the Court of Appeal had not declared that she was deprived of her liberty; only that if she were deprived of her liberty that deprivation was now authorised.

‘Serious confusion’

“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,” Mr Justice Mostyn added.

This point was echoed in his Bournemouth judgement. Citing another Court of Protection case from February this year – W City Council v Mrs L – in which a person with dementia living at home had been found not to have been deprived of her liberty, he said “the continuing legal controversy shows how difficult it is to pin down a definition of what is a deprivation of liberty (i.e. detention by the state) as opposed to a restriction on movement or nothing beyond humane and empathetic care”.

In a fourth judgement – London Borough of Tower Hamlets v TB & Another, from December 2014 – Mr Justice Mostyn ruled that a learning disabled woman, TB, was deprived of her liberty in the flat in which she lived because all elements of the acid test were met. Notably, unlike Katherine in the Rochdale case, TB “had the motor functions” to leave her flat, but would be brought back if she did so, meaning she was not free to leave.

However, he made clear his reluctance in ruling that TB was detained, adding: “…I personally cannot see that her situation amounts to state detention in any sense other than by reference to the term of art devised by the majority in the Supreme Court, I must loyally follow that decision.”

Implications

Unless and until the Supreme Court consider another deprivation of liberty case, the Cheshire West judgement will stand. But, the judge’s rulings expose a disagreement within the judiciary about how the law should be applied, potentially creating confusion for practitioners.

In a comment on the Mr Justice Mostyn’s Tower Hamlets ruling, the Court of Protection team at leading chambers 39 Essex Street said: “…the judge’s further comments on the vexed issue of deprivation of liberty explain in more detail the difficulty many people have in seeing how the intensive support and care that a person requires to meet their needs could engage Article 5 ECHR.  With the abrupt end to the Rochdale case, these questions will remain unanswered by the higher courts at this stage.”