Have we just given up on the notion of the Supreme Court being supreme?

After yesterday’s CM v Blackburn in which the Court of Appeal sidle up to the notion that the Supreme Court weren’t formulating new law in Re B, we now have the High Court in the form of Mostyn J just outright quibbling with their decision in Cheshire West.

In Rochdale v KW 2014 http://www.bailii.org/ew/cases/EWCOP/2014/45.html

Mostyn J was sitting in the Court of Protection and was faced with an application as to whether KW’s liberty was being deprived and if so ought the Court to sanction it.

4. Katherine is aged 52. She is severely mentally incapacitated, to use the new language of the MCA; she is of “unsound mind” to use the old language of Article 5. She suffered brain damage while undergoing surgery to correct arteriovenous malformation in 1996^[1], when aged only 34. 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.
5. In April 2013 Katherine was admitted to hospital. Her mental health had declined. In May 2013 she was transferred to a psychiatric ward, and later to another hospital. On 28 June 2013 she was discharged and transferred to a care home where she stayed until 14 April 2014, when she returned home. For appreciable periods between 28 June 2013 and 14 April 2014 Katherine’s confinement to the care home was not authorised under the terms of the MCA. On 26 June 2014 Katherine, acting by her litigation friend, made a claim for damages under Articles 5 and 8 of the Convention. On any view she had suffered an unlawful deprivation of liberty during those periods when her confinement was not authorised under the MCA. Her claim has been settled with modest compensation and a written apology. I approve the terms of the settlement.
6. Physically, Katherine 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). 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. They 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. The weekly cost of the arrangement is £1,468.04. Of this £932.52 is paid by Rochdale and £535.52 by the local NHS Clinical Commissioning Group (“CCG”).

We have here therefore

(a) a person who lacks capacity

(b) a person who is being cared for by the State  (albeit in the setting of a foster ‘home’ rather than in residential care)

(c) a person who tries to leave that accommodation and when she tries is prevented from doing so, and if she gets out is brought back

On the basis of the Supreme Court’s ruling in Cheshire West, this appears to be a deprivation of liberty, but Mostyn J felt otherwise.

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.

Mostyn J goes on to conduct a philosophical exercise on the nature of liberty  (I can highly recommend Alex Ruck’s blog on the judgment – he says everything that I wanted to say, and far more elegantly http://www.mentalcapacitylawandpolicy.org.uk/js-mill-strikes-back-mostyn-j-takes-on-the-supreme-court/)

It is plain that Mostyn J is aware that he is bound by Cheshire West, although making it plain that he doesn’t himself agree with the Supreme Court, but he attempts to distinguish the case (in ways that frankly, one might consider the Supreme Court had already ruled on), concluding that this particular issue needs to be looked at again by the Supreme Court and granting leave to appeal in order to facilitate that.

19. The opinions of the majority are binding on me and I must loyally follow them even if I personally agree with the view of Parker J and the Court of Appeal in MIG and MEG; with the Court of Appeal in Cheshire West; and with the minority in the Supreme Court^[2]. There is a similarity between this case and that of MIG inasmuch as both involve so called constraints on an incapacitated person living at home. In determining the factual question I cannot take into account the benign motives of Rochdale in providing the care arrangement or of Katherine’s contentment with it. Nor can I take into account the designed normality of the arrangement in Katherine’s own home.
20. As I have shown, a key element of the objective test of confinement is whether the person is “free to leave”. This is part of the acid test. “Free to leave” does not just mean wandering out of the front door. It means “leaving in the sense of removing [herself] permanently in order to live where and with whom [she] chooses” (see JE v DE and Surrey County Council [2006] EWHC 3459 (Fam)[2007] 2 FLR 1150 per Munby J at para 115, implicitly approved in the Supreme Court at para 40). This is the required sense of the second part of the acid test.
21. I do not find the test of the Strasbourg court in HL v United Kingdom 40 EHRR 761, at para 91, where it refers to the “concrete situation” of the protected person, as being of much assistance. The adjective “concrete” means that that I should look for an actual substance or thing rather than for an abstract quality. That is to state the obvious. Plainly, I will be looking only at Katherine’s actual personal circumstances and not at any abstractions.
22. Katherine’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. It is often said that one stress-tests a proposition with some more extreme facts. Imagine a man in hospital in a coma. Imagine that such a man has no relations demanding to take him away. Literally, he is not “free to leave”. Literally, he is under continuous supervision. Is he in a situation of deprivation of liberty? Surely not. So if Katherine cannot realistically leave in the sense described above then it must follow that the second part of the acid test is not satisfied.
23. 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 in the sense described. She had sufficient mental capacity to make the decision to leave, in the sense described. If she tried she would be stopped. Therefore, it can be seen that in her case both parts of the acid test was satisfied.
24. In my judgment there is a very great difference between the underlying facts of MIG’s case and of this case notwithstanding that in both cases the protected person lives at home.
25. It is my primary factual finding that in Katherine’s case the second part of the acid test is not satisfied. She is 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.
26. I am not suggesting, of course, that it is impossible for a person ever to be deprived of his liberty by confinement in his or her own home. In the field of criminal law this happens all the time. Bail conditions, or the terms of a release from prison on licence, routinely provide for this. However, I am of the view that for the plenitude of cases such as this, where a person, often elderly, who is both physically and mentally disabled to a severe extent, is being looked after in her own home, and where the arrangements happen to be made, and paid for, by a local authority, rather than by the person’s own family and paid for from her own funds, or from funds provided by members of her family^[3], Article 5 is simply not engaged.

For me, Alex Ruck puts it perfectly in his analysis

Mostyn J’s conception of freedom to leave is fundamentally predicated upon a concept that of liberty that is dependent upon a person’s ability to exercise that right, either themselves or by another. A person who is severely physically disabled – and therefore house-bound – could not, on Mostyn J’s analysis, be considered to be deprived of their liberty. It is, however, extremely difficult to square that analysis with the conclusion of Lady Hale (with whom Lord Kerr agreed) that liberty must mean the same for all, regardless of whether they are mentally or physically disabled (see the discussion at paragraphs 33-36).

We are once again getting back to a conflation of two questions – whether someone is deprived of their liberty, with whether it is justified. Katherine’s circumstances almost certainly make any deprivation justifiable, but to say that her liberty is not deprived as a result of her physical and mental difficulties is at right angles to the decision of the Supreme Court in Cheshire West.

We shall see what they say, if the case finally gets to them, but given how long we waited for Cheshire West to be resolved, the prospect of further doubt in this area is not appealing.

{I myself like to ‘stress-test’ deprivation of liberty cases by looking back to L and Bournewood – I’m not sure L would be helped by this sort of formulation}