A smiling carer chats with an elderly lady

CASE SUMMARY: Rochdale MBC v KW [2014] EWCOP 45

On 18 November 2014, Mr Justice Mostyn handed down a rather controversial decision in the case of Rochdale MBC v KW [2014] EWCOP 45.

We refer to this decision and his subsequent comments in the Winter 2015 edition of our Newsletter.

In that case Mr Justice Mostyn requested that the Supreme Court in Cheshire Westreconsider the application of Article 5 ECHR in the context of deprivation of liberty at home.

The case concerned Katherine, a 52 year old woman who lacked capacity to consent to her care arrangements. She was cared for in her own home with a package of 24/7 care funded jointly by Rochdale MBC and the local CCG (the state).

Mr Justice Mostyn disagreed with the majority in Cheshire West and in this case held the view that a person who is severely physically disabled and house-bound as a result of that disability, could not be considered to be deprived of their liberty.

The decision revolved around the theoretical debate as to the meaning of ‘liberty’ and the matter was referred to the Court of Appeal (despite Mostyn J’s desire for it to leap frog directly to the Supreme Court).

Whilst awaiting the appeal decision, Mr Justice Mostyn’s decision added yet another layer of confusion for those trying to provide guidance to clinical and social work staff as to how properly to discharge their functions or those trying to make care arrangements for P in their own homes.

The matter was due to go before the Court of Appeal today, but as we heard yesterday from Alex Ruck Keene on his brilliant website the parties agreed a consent order in which they agreed that Katherine was deprived of her liberty in her home.

Hopefully, this will provide a little more clarity for those professionals grappling with deprivation of liberty in the community, but it is disappointing that we have no judgment to really get to grips with the reasons as to why. Some are calling for written reasons as to why the consent order was agreed, which might provide us with some of the answers. We wait to see if this will be provided.

The advice remains the same – take the words of Lady Hale incredibly seriously when determining whether someone is deprived of their liberty in any environment. You do not want to be landed with a bill of over £60,000 for unlawful deprivation of liberty as Essex County Council have recently faced following an appalling set of circumstances.

For further information about any issues regarding capacity, please contact Jess Flanagan or a member of our Court of Protection team.