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
Rochdale Metropolitan Borough Council v KW (by her litigation friend Celia Walsh)  EWCOP 45 – read judgment
Mostyn 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  UKSC 19,  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.
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