Mr Justice Mostyn has delivered judgment on whether the care arrangements for KW (Kathryn) in her own home amount to a deprivation of liberty within the meaning of Article 5 of the European Convention on Human Rights.
Kathryn is 52 years old and is described as having severe mental incapacity and a high level of care needs, requiring the presence of carers in her home 24/7. Her home is held under a tenancy from the Housing Association and her care is jointly funded by Rochdale and the local CCG. If Kathryn were to try and leave the home then the carers would stop her.
In determining whether the case of Kathryn amounted to a deprivation of liberty, Mostyn drew on the widely reported authority from the Supreme Court in the appeals of Cheshire West and the MIG and MEG cases.
Mostyn distinguished the facts of Kathryn on the basis that she is not physically capable of leaving her home and therefore it cannot be said that she is not ‘free to leave’. He said that she was not being constrained from leaving because she does not possess the physical or mental ability to leave. Mostyn did recognised that a person could be deprived in their own home but the circumstances where a local authority makes care arrangements for a person with severe physical and mental disability at home; does not alone amount to an Article 5 deprivation.
The case has now been referred to the Court of Appeal and will likely find its way to the Supreme Court. In his judgment Mostyn acknowledged being bound by the majority decision of the Supreme Court in Cheshire West but he also made it clear that he disagreed with the majority view. It is interesting to note that neither party gave submissions that this was not a deprivation of liberty.
Until the issue is given further judicial consideration it would be advisable to continue applying the test laid down in Cheshire West without yet applying the interpretation of ‘free to leave’ that has been given by Mostyn.