Rochdale Metropolitan Borough Council v KW (by her litigation friend Celia Walsh) and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 18 November 2014 |
| Neutral Citation | [2014] EWCOP 45 |
| Docket Number | Case No: 12488518 |
| Court | Court of Protection |
| Date | 18 November 2014 |
[2014] EWCOP 45
COURT OF PROTECTION
Manchester Civil Justice Centre
1 Bridge Street West, Manchester, M60 9DJ
Mr Justice Mostyn
Case No: 12488518
Mr Simon Burrows (instructed by Rochdale MBC Legal Services) for the Applicant
Mr Adam Fullwood (instructed by Peter Edwards Law LLP) for the First Respondent
The Second and Third Respondents were neither present nor represented
Hearing date: 7 November 2014
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court. For the avoidance of doubt in any report of this judgment the First Respondent may be referred to as "Katherine".
The question I have to determine is whether the arrangement made for the care of the First Respondent, KW ("Katherine"), in her own home, by the Applicant, Rochdale Metropolitan Borough Council ("Rochdale"), amounts to a deprivation of liberty within the terms of Article 5 of the European Convention on Human Rights 1950, which is incorporated domestically by the Human Rights Act 1998. That arrangement is approved by me pursuant to section 15 Mental Capacity Act 2005 ("MCA"). If it does amount to a deprivation of liberty then my order will have to provide for periodic reviews by this court. Such reviews plainly have significant resource implications for this hard pressed local authority. Every pound spent on such reviews is a pound less for other vitally necessary projects.
My answer to the question will primarily be made on an objective, factual, basis.
The Second and Third Respondents are Katherine's sister and brother. They have not played any part in the proceedings.
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.
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.
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").Mr Adam Fullwood, representing Katherine, says that having regard to the majority decision of the Supreme Court in the combined appeals in the Cheshire West and MIG and MEG cases (reported sub nom P v Cheshire West and Chester Council and another; P and Q v Surrey County Council [2014] UKSC 19, [2014] 1 AC 896) this is a deprivation of liberty situation. Mr Simon Burrows, representing Rochdale, is constrained to concur. Notwithstanding their excellent arguments, and with great respect, I do not agree. 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.
It has been said that a consequence of the Supreme Court decision is that there will be tens, if not hundreds, of thousands of similar cases requiring Court of Protection authorisation and periodic reviews. This is not surprising as the facts of this case are unremarkable.
Before I examine the explicatory texts I look at Article 5 itself. This says, so far as is material:
"RIGHT TO LIBERTY AND SECURITY
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
…
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
…
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."
The right is to liberty and security. The framers contemplated the lawful detention of only five classes of persons under (e) namely:
i) Persons with infectious diseases (in order to prevent their spread);
ii) persons of unsound mind;
iii) alcoholics;
iv) drug addicts; and
v) vagrants.
It seems reasonable to construe the lawful detention for these classes ejusdem generis. It seems obvious, at least to me, particularly having regard to the first class of case, that the framers plainly had in mind detention of such persons in a state institution such as a secure hospital, asylum or prison. It is noteworthy that in not one of the cases from the Strasbourg court since the advent of the Convention has it ever been suggested that lawful detention could happen in such a person's own home.
On this side of the Atlantic we are generally not troubled by the ideological dispute between loose constructionists and textual originalists, as besets our American cousins. It is surely relevant, however, to understand the historical and social context in which Article 5 came to be promulgated. Europe was still reeling from the bestial abuses perpetrated by Nazi Germany and its allies. With the onset of the Cold War the spectre of the gulags was very real. The Convention as a whole, and Article 5 in particular, was devised as a bulwark against the repetition of those lawless abuses. To my mind, Article 5, as originally devised and intended by its framers, has absolutely nothing to do with the best interests care regime which Katherine enjoys in her own home.
But, as has been said in a different context, the Convention is "not a foreign object imposed on us by the dead hand of the past, but an evolving reflection of our deepest commitments". It is a "living instrument" to be interpreted in accordance with standards and mores of the time. So the intentions of the framers are not determinative, but they surely remain relevant nonetheless.
It is now conclusively determined that for there to be a deprivation of liberty within the terms of Article 5 the following must be shown:
i) an objective element of "a person's confinement to a certain limited place for a not negligible length of time"; and
ii) a subjective element, namely that the person has not "validly consented to the confinement in question"; and that
iii) the deprivation of liberty must be one for which the State is responsible.
See Storck v Germany (2005) 43 EHRR 96 at paras [74] and [89]. Thus, there must be a confinement for an appreciable period, which is non-consensual, at the behest of the State. In numerous Strasbourg authorities emphasis has been placed on the key twin features of (1) "continuous supervision and control" and (2) lack of "freedom to leave". This is what has come to be known as the acid test (see paras 48, 54, and 105 of the Supreme Court decision).
I consider that the first question I have to answer is what is "liberty" for Katherine? This is obviously a big question. Counsel are agreed that in the Supreme Court only Lord Kerr grapples with it. Before I turn to his opinion I would, as an aside, observe that for John Stuart Mill the answer was plain. In...
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