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Judge Makes Social Worker Cry

Monday morning dawned a little brighter and cheerier for social and care practitioners across the land. Following the Supreme Court decision on Deprivation of Liberty Safeguarding (DOLS) in the combined Cheshire West and MIG and MEG appeals earlier this year, the Court of Protection had, over the summer, attempted to grapple with the practical application of the decision “on the ground” by professionals in care settings.

Upon considering submissions from concerned local authorities in Re X and, yes, wait for it, Re X (Number 2), the Court had laid down a refined “streamlined” procedure for judicial authorisation of DOLS. The purpose was to allow the anticipated volumes of potential new DOLS cases to be swiftly identified and dispatched and Monday 17 November was the go-live date for the all-new, singing and dancing “Re X Procedure”, with brand new application forms and everything. Things were looking up.

However, (there has to be a “however”), by the next day, such hopes and dreams were wrecked. For, on Tuesday 18 November, somewhere Up North a plot had been hatched to storm London’s Civil Justice Centre and overthrow the Supreme Court. Now, that’s how I would have described it were I a journalist but, nonetheless, what actually happened was equally as startling (for care practitioners and lawyers anyway). It has also been described as “Mostyn J takes on the Supreme Court”, which is perhaps a little less salacious. However, I prefer the to-the-point “Judge makes social worker cry”.

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Bold Decision by Judge Mostyn

Judge Mostyn, sitting as a Court of Protection judge in Manchester, heard a case involving Rochdale Borough Council and a mentally and physically disabled woman called Katherine. In a bold decision that name-checked 19th century British philosopher and social theorist John Stuart Mill (whose Twitter account has overnight attracted 1,273,480 new followers) as well as the Nazis (no new followers), Judge Mostyn ruled that Katherine had not had her liberty deprived by the care regime in her own home. He made no bones about his disagreement with the majority of the appellant judges in Cheshire West (Lady who?) and his agreement with the dissenters. Although the decision is considered, as one would expect, essentially, it came down to a particular set of circumstances in which Katherine could not leave (due to her disabilities) if she wanted to (which she couldn’t, due to her mental impairment). She was therefore not in any position to exercise her freedom to leave and, thus, her liberty was not being deprived by the local authority who just happened to be funding her care.

While one can have sympathy for the judge’s analysis as to how far we have travelled from the original purposes of Article 5 of the ECHR and its right to liberty (against the “bestial abuses of Nazi Germany”), it is still ultimately difficult to square with the majority decision in Cheshire West and, more immediately, can only widen the corridor of uncertainty for practitioners (to borrow from Geoff Boycott). Anyway, have a look: Rochdale Borough Council v KW & Ors [2014] EWCOP 45, as well as Alex Ruck-Keene’s excellent observations at www.mentalcapacitylawandpolicy.org.uk.

An appeal is underway, so it will rumble on. One last thought: did anyone get to fill in one of the new forms on Monday?