KW (by Her Litigation Friend), and Others v Rochdale Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls |
| Judgment Date | 20 October 2015 |
| Neutral Citation | [2015] EWCA Civ 1054 |
| Docket Number | Case No: B4/2015/1272 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 October 2015 |
[2015] EWCA Civ 1054
The Master of the Rolls
Lady Justice Black
and
Lord Justice Underhill
Case No: B4/2015/1272
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COURT OF PROTECTION
LEEDS CIVIL HEARING CENTRE
MR JUSTICE MOSTYN
Case No. 12488518
Royal Courts of Justice
Strand, London, WC2A 2LL
Adam Fullwood (instructed by Peter Edwards Law Solicitors) for the Appellant
Simon Burrows (instructed by Ann Butterfield, Rochdale Metropolitan Borough Council) for the Respondent
Hearing date: 8 October 2015
this is the judgment of the court.
The background
KW is aged 52. She is severely mentally incapacitated. As a result of brain injury that she suffered during surgery in 1996, 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 with support 24 hours a day.
The present position is that she is only just ambulant with the use of a wheeled Zimmer frame. In a judgment given on 18 November 2014 ("the first judgment"), Mostyn J said:
"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 first judgment was given in the context of a hearing in the Court of Protection to determine an application by Rochdale Metropolitan Borough Council, being the local authority responsible for KW's care, for directions under the Mental Capacity Act 2005. One of the questions was whether she was subject to a "deprivation of liberty" within the meaning of article 5 of the European Convention on Human Rights ("the Convention"). If there is a deprivation of liberty, then it has to be authorised either by a court or by procedures known as the deprivation of liberty safeguards. In P v Cheshire West and Chester Council and P and Q v Surrey County Council [2014] UKSC 19, [2014] 1 AC 896 (" Cheshire West") the majority in the Supreme Court held that, in cases involving the placement of mentally incapacitated persons, the test to be applied in determining whether they are being deprived of their liberty is whether they are under continuous supervision and control of those caring for them and are not free to leave.
Mostyn J purported to apply the test required by Cheshire West, although it is clear from para 19 of the first judgment that he did not agree with it. He said at para 17 that it was impossible to see how the protective measures in place for KW could linguistically be characterised as a "deprivation of liberty". Quoting from JS Mill, he said that the protected person was "merely in a state to require being taken care of by others, [and] must be protected against their own actions as well as external injury". At para 25, he said that he found that KW was 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".
For this reason, he felt able to distinguish the case of MIG on the facts (she was one of the parties in Cheshire West). The order of the court (issued on 14 January 2015) declared at para 5 that it was in KW's best interests to reside at the address at which she was residing and to receive a package of care in accordance with her assessed needs. Para 6 recited: "That package of care does not amount to a deprivation of liberty within the terms of article 5 of the [Convention]".
The first appeal
KW appealed to the Court of Appeal. Her principal ground of appeal was that the judge erred in concluding that KW was not being deprived of her liberty in her home. Section 5 of the notice of appeal stated that the part of the order which the appellant wished to appeal was "the decision that KW is not deprived of her liberty at home". Section 8 stated that the order that the appellant was seeking was that "KW is deprived of her liberty at home".
The respondent did not oppose the appeal. A consent order was made by this court on 30 January 2015 in these terms:
"UPON reading the appeal bundle filed with the court.
AND UPON the Respondent confirming that it does not intend to oppose the appeal
IT IS ORDERED that:
1. This appeal is allowed.
2. For the review period as defined below, KW is to reside and receive care at home pursuant to arrangements made by Rochdale Council and set out in the Care Plan; and to the extent that the restrictions in place pursuant to the Care Plan are a deprivation of KW's liberty, such deprivation of KW's liberty is hereby authorised.
3. If a change or changes to the Care Plan that render it more restrictive have as a matter of urgent necessity been implemented Rochdale Council must apply to the Court of Protection for an urgent review of this order on the first available date after the implementation of any such changes.
4. If a change or changes to the Care Plan that render it more restrictive are proposed (but are not required as a matter of urgent necessity) Rochdale Council must apply to the Court of Protection for review of this order before any such changes are made.
5. In any event. Rochdale Council must make an application to the Court no less than one month before the expiry of the review period as defined below for a review of this order if at that time the Care Plan still applies to KW. Such application shall be made in accordance with any Rules and Practice Directions in effect at the date of the application being filed or, if not otherwise specified, on form COPDOL10.
6. Any review hearing shall be conducted as a consideration of the papers unless any party requests an oral hearing or the Court decides that an oral hearing is required.
7. "The review period" shall mean 12 months from the date on which this order was made or, if an application for review has been filed at Court before that date, until determination of such review application.
8. Nothing shall published that will reveal the identify of the Appellant who shall continue to be referred to as "KW" until further order pursuant to section 12 of the Administration of Justice Act 1960.
9. There shall no order for costs between the parties.
10. There shall be a detailed assessment of KW's public funding costs."
Attached to the order was the following:
"Statement of reasons for allowing the appeal as required pursuant to CPR, PD52A at para 6.4.
The reason for inviting the Court of Appeal to allow the appeal by consent is that the learned judge erred in law in holding that there was not a deprivation of liberty. He was bound by the decision of the Supreme Court in P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & ors [2014] UKSC 19; [2014] AC 986 ("Cheshire West") to the effect that a person is deprived of their liberty in circumstances in which they are placed by the State in a limited place from which they are not free to leave. It is accepted by both parties on facts which are agreed that this was the position in the case of KW and that the learned judge also erred in holding that KW might soon not have the ability to walk or leave home on her own."
The second judgment
On 2 February 2015, Mostyn J directed that the case should be reserved to him. On 3 February, he directed that a hearing should take place for:
"Directions as to the scope of (and reasons for) the additional obligations imposed on this court by virtue of the consent order made by the Court of Appeal on 30 January 2015."
The parties appeared before him on 2 March. They expected that he would give effect to the consent order which, it was common ground, had decided that any review hearings would be conducted on the basis that KW was being deprived of her liberty at home. Contrary to their expectations, however, the order that the judge made was that:
"1. Any review hearing in accordance with paragraphs 3 or 4 of the Court of Appeal's order dated 30 January 2015 can only be triggered if the restrictive changes proposed amount to a bodily restraint comparable with that which obtained in P v Cheshire West and Cheshire Council [2014] 1 AC 896.
2. A review hearing under paragraph 5 of the Court of Appeal order dated 30 January 2015 shall be a hearing de novo to determine if a deprivation of liberty exists."
In order to understand how this surprising decision was made, it is necessary to examine the reserved judgment of Mostyn J ("the second judgment") which he gave on 13 March in a little detail. But before we do so, we need to refer to the relevant procedural rules.
CPR 52.11 provides:
"(1) Every appeal will be limited to a review of the decision of the lower court unless —
(a) a practice direction makes different provision for a particular category of appeal; or
(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.
….
(3) The appeal court will allow an appeal where the decision of the lower court was —
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
…….
"
...
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