This is a case concerning the deprivation of liberties safeguards. It follows on from an earlier decision in Rochdale MBC v KW & Ors 2014 EWCOP 45 in which having considered whether K was deprived of her liberty Mr Justice Mostyn found on a factual basis that the second part of the acid test was not satisfied:
“she’s 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…
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 persons 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 25 and 26 of that judgment).
K was mentally trapped in the past with a tendency to wander and used a wheeled Zimmer frame. She held a tenancy from a housing association and had carers 24/7. They cared for her every need.
Mostyn J gave KW permission to appeal to the Court of Appeal on the basis that the involvement in KW’s life in her home is sufficient to engage article 5 of the European Convention on Human Rights in her favour. The first respondent, KW (by her litigation friend), asserts that it does. The order which Mostyn J made provided that it was in KW’s best interest to reside at a specified address and to receive a package of care in accordance with the assessed needs. He furthermore declared that the package of care did not amount to deprivation of liberty within the terms of Article 5 of the European Convention on Human Rights. It was that last part which is referenced in paragraph 5 for which permission to appeal was granted.
The Court of Appeal on 30 January 2015 allowed the appeal against the decision of Mostyn J by consent and without a hearing. It appears that the reasoning for allowing the appeal by consent under CPR PD52A was that Mostyn J had erred in law in holding that there was not a deprivation of liberty and that he was bound by a decision of the Supreme Court in the case known as Cheshire West.
Mostyn J (post Court of Appeal) considered the case law concerning appeals under CPR too and at paragraph 12 noted “an appeal may be allowed by consent 'without determining the merits of the appeal' if it is satisfied that there are good and sufficient reasons for so doing. Therefore it follows that this procedure, which involves a determination on the papers and without an oral hearing, cannot be used to determine an appeal on the merits”.
In paragraph 20 he notes the unusualness of the decision of the Court of Appeal in that, although the appeal was allowed, this must have been a determination on the merits which would ordinarily fall outside paragraph 6.4 of CPR PD 52A. However there was no judgment and he queried how it could be said that his jurisprudential analysis of the case as augmented in the Tower Hamlets case was said to be wrong. Accordingly he said at paragraph 23:
“it therefore seems to me that we are back to square one with no one knowing whether Katherine is or is not being detained by the state within the terms of Article 5. That issue will have to be decided at the next review hearing whether it is held under paras 3, 4 or 5 of the Court of Appeal order. Pursuant to para 6 I now direct that any review hearing will be conducted by me at an oral hearing and on the basis of full fresh evidence concerning Katherine's circumstances. Until then Katherine's status must be regarded as being in limbo.”
In paragraph 24 he therefore considered that paragraph 5 of the Court of Appeal order was” not a review of a determined situation of state detention but is rather a hearing de novo to determine if one exists.”
This is a rather esoteric point as to the limits of CPR PD 52 a and in particular section vi – that of disposing of applications and appeals by consent . It is not clear why the Court of Appeal failed to provide a reasoned judgment notwithstanding that all parties consented to the appeal. The order provided by the Court of Appeal in essence provides for a review of the care plan and provides in paragraph 2 “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”
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