Court of Appeal castigates judge’s conclusion on deprivation of liberty

21 October 2015 by Rosalind English

KW (by her litigation friend) and others v Rochdale Council (Court of Appeal) [2015] EWCA Civ 1054 – read judgment

This was an appeal against a ruling by Mostyn J in the Court of Protection concerning a consent order between an incapacitated woman, the appellant, and the local authority ([2015] EWCOP 13). The judge had held that the 52 year old appellant, who had been severely incapacitated following surgery, had not been subject to deprivation of liberty contrary to Article 5 of the European Convention on Human Rights by her 24 hour care package. In his view, the test for deprivation of liberty in Cheshire West and Chester Council v P [2014] UKSC 19 did not apply.  In paragraph 17 of his judgment Mostyn J remarked that it was impossible to see how the protective measures in place for KW could linguistically be characterised as a “deprivation of liberty”. Quoting from JS Mill, he said that the protected person was “merely in a state to require being taken care of by others, [and] must be protected against their own actions as well as external injury”. At para 25, he said that he found that KW was not “in any realistic way being constrained from exercising the freedom to leave, in the required sense, for the essential reason that she does not have the physical or mental ability to exercise that freedom”.

He therefore ordered that it was in KW’s best interests to reside at the address at which she was residing and to receive a package of care in accordance with her assessed needs. The Court of Appeal upheld her appeal against this ruling, holding that the judge had been bound by Cheshire West and had made a material error of law. 

Background to the litigation

When Mostyn J was asked whether the appellant’s Article 5 rights had been infringed, he distinguished Cheshire West and held that the care package did not amount to a deprivation of liberty.  He ruled that a review of the consent order governing her care package would only be necessary if the proposed restrictive changes to the arrangement amounted to bodily restraint. He found that the terms of the consent order created some confusion as to whether KW was, in fact, being detained by the state within the terms of Article 5. In the absence of a reasoned judgment from the Court of Appeal explaining why he was wrong, Mostyn J maintained “firmly” the correctness of my jurisprudential analysis in my principal decision as augmented in his Tower Hamlets decision.

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.

The issues before the Court of Appeal in the instant case were therefore whether the consent order had decided that the appellant was subject to a deprivation of liberty, and whether it was ultra vires by virtue of having been made by a procedurally impermissible route.

The Court’s decision

Read in its proper context, the consent order necessarily involved the instant court deciding that the appellant’s care package involved a deprivation of liberty.  It followed that the judge was wrong to hold that it had not been decided by this court that KW was being detained by the state within the terms of Article 5. The consent order was not ultra vires. It was “futile” for a judge who was required to give effect to an order of a higher court to complain that it was wrong for any reason.

Further, the Master of the Rolls (giving judgment), Black and Underhill LJJ rejected the notion that the judge whose decision was under appeal had “any entitlement to a decision on the merits.”

In deciding whether to make a consent order without a decision on the merits, the appeal court is only concerned with the interests of the parties and the public interest. The interests of the judge are irrelevant.

“Good and sufficient reasons” was a wide phrase which conferred a wide discretion. It involved the court being satisfied that the parties’ consent was based on apparently competent legal advice, and that the parties could advance plausible reasons to show that the lower court decision was wrong. In the instant case the court had been right to find that there were good and sufficient reasons for accepting the consent order and allowing the appeal without considering its merits.

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