Have we lost sight of J.S. Mill’s concept of the right to liberty? Article 5 in the Court of Protection

21 November 2014 by

Rochdale Metropolitan Borough Council v KW (by her litigation friend Celia Walsh)   [2014] EWCOP 45 – read judgment

JohnStuartMillMostyn J has pulled no punches in rejecting an application for a declaration that an incapacitated person, being looked after in her own home, has been deprived of her liberty contrary to Article 5. There is a very full account of the judgment on the Mental Capacity Law and Policy blog so I will keep this summary short.

The first respondent, KW, is a 52 year old woman who is severely mentally incapacitated. She suffered brain damage while undergoing surgery to correct arteriovenous malformation in 1996. This resulted in a subarachnoid haemorrhage and long term brain damage. She was left with cognitive and mental health problems, epilepsy and physical disability. She was discharged from hospital into a rehabilitation unit and thence to her own home, a bungalow in Middleton, with 24/7 support. Physically, KW is just about ambulant with the use of a wheeled Zimmer frame. Mentally, she is trapped in the past. She believes it is 1996 and that she is living at her old home with her three small children (who are now all adult). As Mostyn J says,

Her delusions are very powerful and she has a tendency to try to wander off in order to find her small children. Her present home is held under a tenancy from a Housing Association. The arrangement entails the presence of carers 24/7 [who] attend to her every need in an effort to make her life as normal as possible. If she tries to wander off she will be brought back.

Because of the majority decision of the Supreme Court in the combined appeals in the Cheshire West and MIG and MEG cases (reported sub nom P v Cheshire West and Chester Council and another; P and Q v Surrey County Council [2014] UKSC 19, [2014] 1 AC 896), it was argued on K.W.’s behalf that this is a deprivation of liberty situation.  Mostyn J’s response to this was robust, to say the least:

with great respect, I do not agree. I find it impossible to conceive that the best interests arrangement for Katherine, in her own home, provided by an independent contractor, but devised and paid for by Rochdale and CCG, amounts to a deprivation of liberty within Article 5. If her family had money and had devised and paid for the very same arrangement this could not be a situation of deprivation of liberty. But because they are devised and paid for by organs of the state they are said so to be, and the whole panoply of authorisation and review required by Article 5 (and its explications) is brought into play. In my opinion this is arbitrary, arguably irrational, and a league away from the intentions of the framers of the Convention.

He pointed out that Article 5 protects interests of liberty and security, and makes special provision for persons of “unsound mind” (the equivalent of “severely mentally incapacitated under the Mental Capacity Act 2005). The Convention addressed the lawless abuses of those in power during the Third Reich and the ensuing Cold War.

 Article 5 in particular, was devised as a bulwark against the repetition of those lawless abuses. To my mind, Article 5, as originally devised and intended by its framers, has absolutely nothing to do with the best interests care regime which Katherine enjoys in her own home.

For the high priest of liberty, the Enlightenment philosopher John Stuart Mill,  the idea that Katherine’s care in her own home involved an encroachment on her liberty “would have been utterly impossible”:

His view would have been the same for each of the cases before the Supreme Court. For Mill, human liberty has three essential strands or components. First, liberty of conscience. Secondly, liberty of tastes and pursuits. And thirdly, liberty of combination among individuals. Each of these components requires a positive and reasoned intellectual function which is hard to ascribe to a person of unsound mind, which is why Mill qualified his doctrine as applying only to those human beings in the “maturity of their faculties.

But because he was bound by the majority decision in MIG and MEG, Mostyn J could not take into account the benign motives of Rochdale in providing the care arrangement or of Katherine’s contentment with it, nor could he take into account the designed normality of the arrangement in Katherine’s own home. But that, in his view, led  to an absurdity:  she 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 invited the Supreme Court to review their position on deprivation of liberty in such circumstances, although Rochdale Council did not agree to a leapfrog appeal. He therefore made alternative provision for extending time to seek permission to appeal from the Court of Appeal.

Alex RK ends his post with the reflection that, any appeal should 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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

 

1 comment;


  1. Ma. says:

    He doesn’t appear to understand cognitive problems at all..who knows the plaintiff better than her friend?..I shudder to think what will happen when judges are called upon to ‘Grant a mercy death….’

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: