Written evidence from Sir Nicholas Mostyn (DOL0012)

1. Thank you for giving me the opportunity of making this submission to the Joint Committee.

2. I will deal substantively only with the third question. My answer to the first two questions is yes, if (and only if) the law as pronounced by the majority in Cheshire West is affirmed as correct. 

3. The work of the Law Commission in producing the report Mental Capacity and Deprivation of Liberty (Law Com No 372) was prodigious, but the unanswered question, the elephant in the room if you like, is: was Cheshire West correctly decided? The Law Commission did not grapple with this. Maybe it was too controversial. Maybe they were internally divided.

4. The Law Commission could have recommended that Parliament should reverse the view of the bare majority in Cheshire West (Lady Hale, and Lords Neuberger, Kerr and Sumption) and that the view of the minority (Lords Carnwath, Hodge and Clarke), and of both constitutions of the Court of Appeal in respectively P & Q and Cheshire West (i.e. Wilson, Smith, Rimer, Munby, Lloyd and Pill LJJ), should be reinstated. The high judicial voices in favour of the nuanced, comparative, fact-specific definition of deprivation of liberty in mental capacity cases are numerous and persuasive. It was adventitious that Lord Wilson did not sit in Cheshire West, as he had been on the Court of Appeal panel in P and Q. If that case had not also been appealed, and only Cheshire West had, we can safely assume that we would not be in the bureaucratic, artificial and resource-consumptive situation that we are now.

5. Under section 64(5) of the 2005 Act it is provided that “references to deprivation of a person's liberty have the same meaning as in Article 5(1) of the Human Rights Convention.” Yet, no case from Strasbourg has come close to saying that the case of someone of “unsound mind” (as Article 5 puts it) falls within the terms of that article if they are being looked after in their own home. It might be thought that if the narrower, more nuanced test were restored there would be a risk that the Strasbourg court would disagree with it, with the result that a cohort of incapacitated people would fall into a no-mans-land: outside the statutory definition but covered by Article 5 nonetheless. But it is surely vanishingly unlikely that Strasbourg would disagree with the narrower test: it is after all completely consistent with its jurisprudence, which mandates a fact sensitive approach and which looks at a range of factors such as the intensity of the restrictions in question. It is the majority view which is out of step.  It is worth reflecting on Katherine’s circumstances in the Rochdale case (q.v.). In para 6 I stated:

“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.”

I respectfully suggest that it is not only an abuse of language to suggest that she is in state detention, but also that it is impossible to imagine the Strasbourg court deciding that she was.

6. I confine my remarks to the case of the incapacitated adult (“P”). Space does not permit me to dilate on the complexities concerning the application of Article 5 to children. I do not dispute that in the case of an incapacitated adult  the test of the Strasbourg court in  Storck v Germany (2005) 43 EHRR 96, paras 74, 89, must be applied. Thus Article 5 is engaged if the well-known three components are present viz (a) confinement in a particular restricted place for a not negligible length of time; (b) a lack of valid consent; and (c) the attribution of responsibility to the state. 

7. The test for component (a) as promulgated by the majority of the Supreme Court is a binary black-and-white one. It is simply this: is the protected person under continuous supervision and control and not free to leave? But such a one-size-fits-all test has never been enunciated by Strasbourg. As Lord Clarke put it: “The ECtHR has not held that there is only one question (or acid test), namely whether the individual concerned is free to leave. Its approach is more nuanced than that.” To my knowledge no other country has adopted the approach mandated by the majority in Cheshire West.

8. Since that decision I have attempted in a number of cases, within the bounds of the doctrine of stare decisis, to mitigate the more extreme ramifications of the decision. I have suffered a rebuke from the Court of Appeal, but I remain unrepentant. I am convinced that the decision is legally wrong and socially disastrous. It pits the state against families and costs hard-pressed public authorities vast sums, which ought to be spent on the front line.

9. The cases are:

Rochdale Metropolitan Borough Council v KW & Ors [2014] EWCOP 45 (18 November 2014)   

The London Borough of Tower Hamlets v TB & Anor  [2014] EWCOP 53 (17 December 2014)

Bournemouth Borough Council v PS & Anor [2015] EWCOP 39 (11 June 2015)

Re CD [2015] EWCOP 74 (13 November 2015) 

10. It is to be noted that in the second and fourth cases I felt my hands were tied and that I had no choice but to declare that the protected person was in a situation of state detention. The fourth case was completely unreal. There the protected person strongly wanted the operation to remove potentially lethal ovarian masses yet because she lacked capacity I had to declare that she was deprived of her liberty during the operation. How much money did that case cost the state?

11. The problem with this hard-edged approach is that it begins to show serious signs of strain when it is tested by quite ordinary situations. In Cheshire West, in the Court of Appeal, Munby LJ considered a child placed with foster-parents, who had a child of their own. It would be absurd, he said, if the former were caught by Article 5 but not the latter. Yet, Lord Neuberger thought that the latter was so caught. Lord Kerr thought that foster-children would not be caught by Article 5 when they were “very young”, but not when they were older[1]. There are other conundrums, exemplified by the cases I have heard. Is it true that someone with a mental age of a very young child who wanders off is being detained by the state if she is brought back (the Rochdale case)? Or someone who is looked after in his home and who has never shown the slightest wish to leave (the Bournemouth case)? Or someone who is incapacitated but who fervently wants an operation to restore her health (Re CD)? Or someone intubated and sedated in hospital (to which I turn below)?  

12. It is highly significant that in the case of Ferreira, R (On the Application Of) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31 (26 January 2017)  Arden LJ was not prepared to find that the intubated and sedated patient (“P”) was in “state detention” when she died in the ICU at King’s College Hospital. At [98] – [99] she held that the acid test should be interpreted to read as if the conjunctive adverb “therefore” was inserted viz:

Is the protected person under continuous supervision and control and therefore not free to leave?

Thus, she reasoned, a causative analysis has to be undertaken. Is it the “real cause” that P is not free to leave the continuous supervision and control, or is it the underlying condition, for which the state is not responsible? If the latter, the acid test is not satisfied. But she stated: “It is quite different in the case of living arrangements for a person of unsound mind. If she is prevented from leaving her placement it is because of steps taken to prevent her because of her mental disorder.” I am not sure I understand the distinction. Even so, a pure application of Lady Hale’s black-and-white acid test should surely have led to the opposite conclusion. This suggests that some retreat from the absolutism of Lady Hale’s test has already begun.

13. I agree with the causative analysis and suggest that it should be applied across the board in all cases of mental incapacity.

14. My next issue is about the meaning of “freedom to leave”. I do not agree that this should mean merely the ability to walk off in a certain direction, which is what most people have interpreted Lady Hale to mean.   However, in Re D (A Child) [2017] EWCA Civ 1695 at [22] Sir James Munby P  stated that he considered that Lady Hale was using  it to mean “leaving in the sense of removing himself permanently in order to live where and with whom he chooses” and not merely “leaving for the purpose of some trip or outing.” If this is adopted, then that too will represent a major inroad into the present very wide reach of the test.

15. My fundamental contention is that it should be put beyond doubt by Parliament that an incapacitated adult will only be deprived of liberty if, and only if:
1. she is prevented from removing herself permanently in order to live where and with whom she chooses; and
2. the dominant reason is the continuous supervision and control to which she is subjected, and not her underlying condition.

This would so no more than put Storck (a) on a statutory footing and specify it in accordance with the recent authorities.

16. I would strongly reject any suggestion that were the test to be restored to its previous form that this would represent an erosion of the rights of the mentally impaired. I am a very strong advocate for the promotion of the rights of the mentally impaired.  I would argue that to adopt this test would enhance and not diminish those rights. That is because it would implicitly recognise and promotes the obligation of the state to secure the human dignity of the disabled by recognising that their situation is significantly different from that of the able-bodied, and to take measures to ameliorate and compensate for those disabilities. The new test does not do this.  See London Borough of Tower Hamlets v TB at [57] and Bournemouth Borough Council v PS at [25]. I would suggest that this approach is consistent with, and gives effect to, the Public Sector Equality Duty as set out in section 149(1) Equality Act 2010.

17. It is a bitter irony that the huge volume of DoLs cases arising since the Supreme Court decision has meant that the rights of the mentally impaired are being eroded because only a minority who are deprived of liberty under the new definition will ever get an assessment at all (and even fewer within the statutory time limits). I gather that under the new regime there are around 220,000 DoLS referrals each per year and only about 40% are assessed.   If you are compliant, in end-of-life care, and have a stable placement then you have virtually no hope of ever being assessed. Lord Neuberger once said: "sometimes I think that the only piece of legislation which is totally reliable is the law of unintended consequences"[2], and that is the case here, up to the hilt. A ruling designed to advance the rights of the mentally impaired has resulted in swathes of them being unassessed and this abandoned cohort will inevitably include many who on any view fall within Article 5.

18. There can be no doubt that were the definition I have proposed to be adopted there would be far fewer DOLs cases. In the Tower Hamlets case at [60] I stated:

“At para 1 of my decision in Rochdale Metropolitan Borough Council v KW I referred to the very serious resource implications to local authorities and the state generally if periodical court reviews are required in such cases. Notwithstanding the arrival of the streamlined procedure recently promulgated by the Court of Protection Practice Direction 10AA there will still be tens if not hundreds of thousands of such cases and hundreds of thousands if not millions of documents to be processed. The streamlined procedure itself requires the deployment of much man and womanpower in order to identify, monitor and process the cases. Plainly all this will cost huge sums, sums which I would respectfully suggest are better spent on the front line rather than on lawyers.”

I maintain that view.  I have heard anecdotally that leading counsel for the appellant in the Supreme Court assured the justices that an increase in DOLs cases was not foreseen were the acid test proposed by him to be adopted. I venture that a different decision would have been reached if the justices could have foreseen the eventuation of the explosion in the numbers of DOLs cases, with its huge cost to the public purse.

19. I apologise for breaching the 1500-word limit. I would be happy to amplify my views should the committee find this of assistance.

       16 February 2018