Mr Justice Mostyn is nothing if not brave. In a decision handed down on 18 November 2014: Rochdale MBC v KW  EWCOP 45, he took on the Supreme Court in Cheshire West and demanded that it “reconsider” the application of Article 5 ECHR in the context of deprivation of liberty at home (if not indeed more broadly)
The case concerned a 52 year old woman, “Katherine,” cared for in her own home. As a result of a subarachnoid haemorrhage sustained during a medical operation many years previously, she had cognitive and mental health problems, epilepsy and physical disability. At the time that the matter came before Mostyn J, she was cared for in her own home with a package of 24/7 care funded jointly by Rochdale MBC and the local CCG. Mr Justice Mostyn described her situation thus:
“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 [arranged by an independent contractor]. 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.”
Before Mr Justice Mostyn, both the local authority and KW (by her litigation friend Celia Walsh) agreed that the decision of the majority in Cheshire West compelled the conclusion that she was deprived of her liberty (the local authority being said to ‘constrain to concur’ with this conclusion).
Mostyn J decided to the contrary, holding (at paragraph 7) that he:
“[found] 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.”
In order to reach this conclusion, Mostyn J embarked upon his own analysis of the meaning of Article 5 ECHR and of the concept of liberty, holding that the first question he had to ask was what “‘liberty’ was for Katherine.” This was, he acknowledged, a “big question” (paragraph 14). He considered what J.S. Mill had to say upon the subject, noting that he considered that it “inconceivable” that Mill would have found that the provision of care to Katherine in her own home involved an encroachment on her liberty – and that he would have taken the same view of each the of three cases that were before the Supreme Court in Cheshire West.
In addressing the question of how the Supreme Court addressed this issue, Mostyn J stated he considered (and noted in this that Counsel before him agreed) that Lord Kerr was the only one of the Supreme Court to grapple with the question), and that the answer that Lord Kerr gave (at paragraph 76 of his concurring judgment) was that it the state or condition of being free from external constraint. Mostyn J further latched onto the discussion at paragraphs 76-79 of Lord Kerr’s concurring opinion of the comparison to be made between the extent of the individual’s “actual freedom” with that of someone of that person’s age and station whose freedom is not limited.
The fundamental – philosophical – disagreement Mostyn J had with the judgment of the Supreme Court is laid bare at paragraph 17:
“It is clear that the driving theme of the majority opinions is a denunciation of any form of discrimination against the disabled. With that sentiment I naturally wholeheartedly agree. Discrimination is found where like cases are not treated alike. However, when making Lord Kerr’s comparison you do not have two like cases. You are comparing, on the one hand, a case where an 18 year old does not need protection and, on the other, a case where the 18 year old does. They are fundamentally dissimilar. The dissimilarity justifies differential treatment in the nature of protective measures. For me, it is simply impossible to see how such protective measures can linguistically be characterised as a “deprivation of liberty”. The protected person is, as Mill says, merely “in a state to require being taken care of by others, [and] must be protected against their own actions as well as against external injury”. And nothing more than that. In fact it seems to me to be an implementation of the right to security found in Article 5.” (emphasis in original)
Mostyn J made very clear he agreed with the opinions of the minority in the Supreme Court (and those lower courts that were in line with them), but – properly – recognised that he was bound by the majority. He, however, distinguished Katherine’s situation on the following bases:
1. “Freedom to leave” in the objective test of confinement did not mean “wandering out of the front door” but leaving in the sense of permanently removing oneself to live where and with whom one likes (paragraph 20, relying upon the dicta of Munby J in JE v DE and Surrey County Council  EWHC 3459 (Fam)  2 FLR 1150 per Munby J at para 115, which Mostyn J considered to have been “implicitly approved” in the Supreme Court at para 40).
2. Freedom to leave therefore must mean that the person has the physical capacity to leave. In a passage that will no doubt be pored over carefully in due course, Mostyn J noted that:
“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” (paragraph 22)
3. Katherine’s situation could be distinguished from MIG’s (even though both were being cared for at home) because:
“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.” (paragraph 23)
4. As a factual finding, Katherine “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” (paragraph 25).
Mostyn J emphasised that he was not holding that a person:
“could never 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, Article 5 is simply not engaged” (paragraph 26, footnote in the original)
 There is also the problematic question of whether the State is involved in a private arrangement if benefits, such as attendance allowance, are paid to help with the care of the protected person.
Mostyn J then held that the “matter” (by which I presume he means the application of Article 5 in this context) “should be reconsidered by the Supreme Court.” Mostyn J held that he considered that a “leapfrog” appeal to the Supreme Court was technically possible (if the Council agreed), but made alternative provision for extending time to seek permission to appeal from the Court of Appeal.
This is – to put it mildly – a striking decision, which will, unfortunately, do nothing in the short run to assist those who are trying to provide guidance to front-line social work and clinical staff as to how properly to discharge their functions.
It is inevitable – I suspect – that an appeal will take place (although as a small technical point I suggest that it is not, actually, possible for a leapfrog appeal to take place because of the wording of s.12 Administration of Justice Act 1969, because a judge of the High Court sitting in the Court of Protection is not sitting in the High Court, as required by that Act: see by analogy the discussion in TA v AA & Anor  EWCA Civ 1661 and the discussion at paragraph 55 of that case of the earlier decision in Re B (A Patient) (Court of Protection – Appeal)  1 WLR 278)).
The decision lays bare the philosophical debate as to the meaning of “liberty,” and it is clear that Mostyn J considers that J.S. Mill would have been astonished to find that any of P, MIG or MEG were deprived of their liberty. However, whilst there are undoubtedly grounds upon which proper philosophical arguments can be had as to the meaning of liberty, the decision to me would seem to me to be deeply problematic because it flies in the face of the decision of the majority in the Supreme Court.
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).
I would also note that I am far from convinced that the concept of freedom to leave is defined solely in the ‘macro’ terms identified by Munby J in JE v DE or whether these were, indeed, implicitly endorsed by Lady Hale in Cheshire West. Taking a step back, and even applying Mostyn J’s analysis of the ‘ordinary’ person able to take advantage of their liberty, I would suggest that an ‘ordinary’ person who was unable to come and go from the place that they live as they see fit would undoubtedly consider themselves to be deprived of an important right. I note in this regard the decision of the Grand Chamber in Stanev v Bulgaria and in particular the following paragraphs:
“124. With regard to the objective aspect, the Court observes that the applicant was housed in a block which he was able to leave, but emphasises that the question whether the building was locked is not decisive (see Ashingdane, cited above, § 42). While it is true that the applicant was able to go to the nearest village, he needed express permission to do so (see paragraph 25 above). Moreover, the time he spent away from the home and the places where he could go were always subject to controls and restrictions.
125. The Court further notes that between 2002 and 2009 the applicant was granted leave of absence for three short visits (of about ten days) to Ruse (see paragraphs 26-28 above). It cannot speculate as to whether he could have made more frequent visits had he asked to do so. Nevertheless, it observes that such leave of absence was entirely at the discretion of the home’s management, who kept the applicant’s identity papers and administered his finances, including transport costs (see paragraphs 25-26 above). Furthermore, it would appear to the Court that the home’s location in a mountain region far away from Ruse (some 400 km) made any journey difficult and expensive for the applicant in view of his income and his ability to make his own travel arrangements.
126. The Court considers that this system of leave of absence and the fact that the management kept the applicant’s identity papers placed significant restrictions on his personal liberty.
127. Moreover, it is not disputed that when the applicant did not return from leave of absence in 2006, the home’s management asked the Ruse police to search for and return him (see paragraph 28 above). The Court can accept that such steps form part of the responsibilities assumed by the management of a home for people with mental disorders towards its residents. It further notes that the police did not escort the applicant back and that he has not proved that he was arrested pending the arrival of staff from the home. Nevertheless, since his authorised period of leave had expired, the staff returned him to the home without regard for his wishes.
128. Accordingly, although the applicant was able to undertake certain journeys, the factors outlined above lead the Court to consider that, contrary to what the Government maintained, he was under constant supervision and was not free to leave the home without permission whenever he wished…” (emphasis added)
Finally, taking a step back, I would suggest that it would be an extraordinary consequence (and one entirely incompatible with the decision of the Supreme Court) if – as a matter of principle – any arrangements made by a local authority or CCG to care for an individual in their own home could not amount to a deprivation of that individual’s liberty if that individual was not physically able to leave that home because of their own disabilities. It only requires a moment’s translation of those arrangements to another setting that was not, formally, their own home but was (say) a supported living placement which the adult regarded as ‘home’ to make clear the impossibility of squaring this decision with that of the Supreme Court.
On a personal note, I would just hope that any appeal can 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.