A Court of Protection ruling could “unpick” the landmark Supreme Court decision of Cheshire West on deprivation of liberty, the National Autistic Society (NAS) has warned.
In Cheshire West, the justices held that disabled people have the same right to liberty as everyone else, and laid down a test for determining Art 5 deprivation of liberty where a person lacked the capacity to consent, even in a domestic setting. This was that the person should be under continuous supervision and control, not free to leave the place they were in, and their confinement should be the responsibility of the state.
The Court of Protection case of Rochdale Metropolitan Borough Council v KW [2014] EWCOP 45 concerned a woman with mental health and cognitive problems, epilepsy and physical disabilities, known as Katherine, who received 24-hour support at home. Katherine, who suffered brain damage during surgery, believes it is still 1996 and sometimes tries to wander off to look for her three small children, who are now grown up.
The council and Katherine (through a litigation friend) contended that the Cheshire West test applied and that it was a deprivation of liberty and therefore Court of Protection authorisation was required.
Mr Justice Mostyn, however, held that the test did not apply. “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 [the NHS], amounts to a deprivation of liberty within Art 5,” he said.
“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 Art 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.”
However, Sarah Lambert, head of policy at NAS, says: “This decision appears to directly contravene the Supreme Court’s ruling that liberty must mean the same for all, regardless of disability.
“Any move to revisit or unpick this definition would be a huge step back. NAS is deeply concerned that this decision will create avoidable confusion and uncertainty among health and social care professionals, potentially undermining essential protections for people with autism.”
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