In what may count as a rare bit of good news in the battle for clarity as to exactly what constitutes a deprivation of liberty, the appeal in Rochdale MBC v KW  EWCOP 45 – listed to be heard on 4 or 5 February – has been allowed by consent.
It is unfortunate, perhaps, that this means that there will be no judgment. However, the Court of Appeal could, in principle, have followed Mostyn J in refusing to follow the agreed position of the parties that KW’s position amounted to a deprivation of liberty. The Court of Appeal’s endorsement of the consent order therefore means – I suggest – that practitioners can now proceed on the basis that Mostyn J’s conclusions as to what “freedom to leave” means can be treated with extreme caution at best, if not consigned to history entirely. That does not mean that the philosophical questions that he raised as to the meaning of liberty will necessarily go away, but they will fall perhaps better to be considered in the wider-ranging Law Commission review of the area.
For those after further assistance, the Guidance commissioned by the Department of Health from the Law Society (to which I am contributing) is still on track to be published before the end of February. I will make sure that it is publicised as soon as it is out.
 And with gratitude to Jola Edwards of Peter Edwards Law and Simon Burrows, solicitor for the appellant and Counsel for the respondent respectively for letting me know and confirming that I may circulate this information.