Fundamental right to liberty

The recent case of Rochdale MBC v KW and Others [2015] EWCOP 13 represents an unusual twist in the continuing saga of Surrey CC v P & Others: Cheshire West and Chester Council v P & Another [2014] AC 896.

KW was provided with a
home care package by a jointly funded agency. Ignoring the parties' unanimous view that KW's restrictions amounted
to a deprivation of her liberty, the Court of Protection (CoP) held that Lady Hale's 'acid test' was not satisfied, the care arrangements were in KW's best interests, and the restrictions could not possibly breach article 5 of the European Convention
on Human Rights (ECHR).

KW was not being constrained from leaving, as she lacked the physical or mental ability to exercise such freedom. If her limited mobility deteriorated and she became house-bound, any deprivation of liberty would 'dissolve'. Further, the judge considered it nonsensical that the deprivation of liberty safeguards (DOLS) requirements and review were only necessary if they were state arranged.

The official solicitor contended the judge had erred in finding
no deprivation, and that KW might soon lose mobility or
the ability to leave home alone.
Mr Justice Mostyn considered leap-frogging to the Supreme Court more appropriate due
to Cheshire West, but he gave permission to appeal against his decision (Rochdale MBC v KW & Others [2014] EWCOP 45).

Best interests

The Court of Appeal (CoA) endorsed a consent order declaring KW's deprivation of liberty lawful and in her best interests, which avoided a two-day hearing. A review pursuant to article 5(4) ECHR
was directed in 12 months' time, with liberty to apply if the care plan added further restrictions.

Four days later, Mostyn J listed the matter of his own motion for '[d]irections as to the scope of (and reasons for) the additional obligations imposed on this court by virtue of the consent order'. Civil Procedure Rule (CPR) 52.11(3) provides for an appeal against a decision wrong in
law or unjust due to a serious procedural or other irregularity.

The appeal was allowed by consent, purportedly pursuant to paragraph 6.4 of CPR practice direction (PD) 52A. In Mostyn J's view, there was no jurisdiction to allow an appeal on paper; a consent order could not replace the determination of an appeal on the merits, except where legislation or circumstances changed, or a mistake of fact required it to be set aside.

A material error of fact
was recorded as to KW's
likely deterioration. Mostyn J considered that had been immaterial to his decision, and that he had clearly stated the legal principles on the facts as found. Regardless of agreement, the PD required a judgment explaining the reasons for error to limit such future mistakes. In addition, counsel's opinion had not been annexed to the draft order, as required by paragraph 6.5 of PD52A. Therefore,
the consent order was flawed and the CoA had made a 'procedurally impermissible' decision on the merits.

Nonetheless, a bristling Mostyn J accepted compliance with the order was necessary even if ultra vires. However,
while the appellate court appeared to have set aside paragraph 6 of his order, it was unclear whether it had intended to replace it with a positive declaration of deprivation.

Further, the judge concluded that, given the ambiguous wording of the consent order, the CoA must have been uncertain about whether or
not KW's detention had been state ordered. Accordingly, the deprivation issue remained unsettled. Thus, KW would be
'in limbo' until her next review.

Troubling judgment

The decision is troubling. Certain judgments since Cheshire West seemingly seek to avoid reviews for those deprived of liberty in their own homes (see also W City Council v Mrs L [2015] EWCOP 20).

Yet the right to liberty is a fundamental one, and KW's status ought not to be left undecided.
A state-arranged care package must be imputable to the state.
It is precisely because of state involvement that careful scrutiny of restrictions is essential. Ignoring the jurisdictional issue,
it is obvious the CoA considered Mostyn J erred in finding no deprivation of liberty.

CoP practitioners will recognise the phrase criticised
in paragraph 2 as standard wording: 'to the extent that the restrictions in place pursuant to the care plan are a deprivation of KW's liberty, such deprivation…is hereby authorised'. Had the CoA been unsure about KW's liberty, it would have remitted the matter back for reconsideration.

Also of concern is Mostyn J's observation that KW's disabilities constrained her from exercising her freedom to leave. This confuses deprivation of liberty with best interests. Moreover, taking this into account comes dangerously close to Mrs Justice Parker's discredited concept of 'relative normality' in P & Q v Surrey CC [2011] EWCA Civ 190.

It is difficult to resist concluding the judge was
on a perverse 'frolic' of his own. Despite his decision being overturned, Mostyn J maintained the correctness of his jurisprudential analysis as extrapolated in his judgment in London Borough of Tower Hamlets v TB and Another [2014] EWCOP 53. While he accepted - with obvious irritation - that he was bound by the CoA's decision, he has ensured he can, in effect, ignore it. SJ

Laura Davidson is a barrister practising from No 5 Chambers, specialising in Court of Protection work and mental health law | @No5Chambers

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