Care arrangements for a mentally disabled woman living in her own home do not amount to a deprivation of liberty, a High Court Judge has ruled.
‘Deprivation of liberty’ is a legal concept referring to arrangements made on behalf of people who lack capacity – the ability to make their own decisions – due to illness or disability. A ruling by the European Court of Human Rights established that in some circumstances such arrangements could infringe the person’s right to “liberty and security” under Article 5 of the European Convention on Human Rights. As a result, safeguards were added to the Mental Capacity Act 2005 to try and prevent such infringements.
Rochdale Metropolitan Borough Council -v- KW and others primarily concerned KW, a woman aged 52 who tragically suffered significant brain damage after undergoing corrective surgery in 1996.
After discharge from hospital, she was sent to a rehabilitation unit before eventually returning home under expensive, full time care. In April last year, she was admitted to hospital again after a decline in her mental health. She spent time in a psychiatric ward and a care home before eventually being sent home in April this year.
For significant periods during that year, KW’s stay was not authorised under the Mental Capacity Act and she was awarded compensation and an apology for this, following a claim for damages by her litigation ‘friend’ (representative).
At the Court of Protection, Mr Justice Mostyn explained that:
“Physically, [KW] is just 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).”
She suffers from “powerful” delusions and regularly wanders off in search of her “small” children. Her carers bring her back when this occurs.
At a Court of Protection hearing, counsel for KW’s litigation friend contended that the arrangements under which KW was living amounted to a deprivation of her liberty, following two significant Supreme Court rulings earlier this year on the same issue. Counsel for the local authority concerned, Rochdale Metropolitan Borough Council, felt “constrained to concur”.
But Mr Justice Mostyn was unconvinced, declaring:
“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 [the local NHS Clinical Commissioning Group], amounts to a deprivation of liberty within Article 5”.
The Judge considered the precise wording of Article 5, noting its inclusion of the term ‘security’. For a finding that deprivation of liberty has occurred, it is necessary for the confinement to occur at the hands of the state, he explained.
The Judge constrasted KW’s situation with that of MIG, one of the individuals involved in one of the two cases considered by the Supreme Court: P and Q (by their litigation friend, the Official Solicitor) v Surrey County.
Mr Justice Mostyn explained:
“[KW]’s ambulatory functions are very poor and are deteriorating. Soon she may not have the motor skills to walk even with her frame. If she becomes house-bound or bed-ridden it must follow that her deprivation of liberty just dissolves….By contrast MIG was a young woman with full motor functions, notwithstanding her problems with her sight and hearing. She had the physical capacity to leave …She had sufficient mental capacity to make the decision to leave… If she tried she would be stopped.”
KW was not in any real sense being prevented from leaving her home – she was physically unable to do so said the Judge.
Nevertheless, KW’s case raised important points which he considered should be referred to the Supreme Court. He raised the possibility of so-called ‘leapfrog certificate’, which would enable the case to proceed directly to the upper court, bypassing the Court of Appeal.
Writing on Twitter, legal researcher Lucy Series described the judgement as “totally extraordinary”.
Read the full judgement here.