Deprivation of Liberty seems to be an issue which is putting the doctrine of judicial precedent – where lower court judges have to follow the reasoning and decisions of higher court judges – under considerable strain.
Here, I document – mainly to collate the resources into one place – two recent instances of where the lower courts have been questioning the higher courts.
But actually, this is not new. The Deprivation of Liberty Safeguards were born out of the so-called Bournewood Gap, identified by the case of HL and in particular the ruling of the European Court in H.L. v. THE UNITED KINGDOM – 45508/99  ECHR 471 (5 October 2004). And in the course of that case, an argument that was put – and persuaded the courts in this country – was that the numbers were too large, and that it would therefore be impractical to have a system for reviewing the interference with the liberty of so many vulnerable adults. The Mental Health Act Commission, intervening in the House of Lords estimated that,
“there will be an additional 22,000 detained patients resident on any one day as a consequence of the Court of Appeal judgment plus an additional 48,000 admissions per year under the Act.” … It is obvious that there would in the result be a substantial impact on the available resources; the Commission recorded that the resource implications were likely to be considerable, not only for the mental health services and professionals who have to implement the Act, but also for Mental Health Review Tribunals and for the Commission itself.
The European Court did not buy the “floodgates” arguments. But despite the ruling, it got resurrected in new forms. It would be possible to make a compelling case that the pigs-ear of a judgment that was Munby’s Court of Appeal ruling in Cheshire West was basically a sop to local authorities’ arguments that the numbers needed to be contained.
The Supreme Court got it right this time, and gave a judgment that, irrespective of floodgates arguments, provided a simple test with human rights at its core:
“A gilded cage is still a cage.” (Lady Hale at paragraph 46)
So, that is the back-story. What is fascinating now is that the Supreme Court may have taken its cue from the European Court, but the lower courts won’t take their cue from the higher.
Issue 1 – The process
Munby, having been comprehensively overruled by the Supreme Court, decided to take the initiative again in X & Ors (Deprivation of Liberty)  EWCOP 25 (07 August 2014) – “if the Supreme Court is determined to open these floodgates, at least I can get the initiative back in how we operate them”, the message seems to have been. So he called lots of interested parties together, did a consultation exercise in his own courtroom, and gave a ruling how the process would work.
Except… that’s the wrong way to make new procedures. Or as Lady Hale (she of the “gilded cage” quote, Munby’s nemesis in the Supreme Court on Cheshire West) more tactfully put it,
“This is a novel and interesting way to conduct procedural reform.” (Speech to the Mental Health Tribunal Members’ Association 2014)
And the Court of Appeal confirmed it was not only novel and interesting, but also unlawful, overturning Munby’s ruling, in X (Court of Protection Practice), Re  EWCA Civ 599 (16 June 2015).
What next? Well, the Court of Appeal is now singing from the same hymn sheet, and saying, if these floodgates are open we actually have to deal with the deluge, not try to shut them. Will the High Court agree?
No! Charles J has recently issued a ruling in which he patiently (or verbosely) explains to the Court of Appeal why they are wrong – see paragraphs 197 to 213 of NRA & Ors, Re  EWCOP 59 (25 September 2015).
Issue 2 – The definition
But can the High Court at least agree that the meaning of a deprivation of liberty is clear? Well, no. At least one high court judge, Mostyn J, has been refusing to toe this particular line. In two cases, he basically explained how the Supreme Court is wrong:
- Rochdale Metropolitan Borough Council v KW & Ors (Rev 1)  EWCOP 45 (18 November 2014); and
- The London Borough of Tower Hamlets v TB & Anor (Rev 1)  EWCOP 53 (17 December 2014).
And what happened next is the most fascinating example of a lower court judge trying not to follow precedent:
Mostyn’s ruling was appealed, and the appeal was settled by consent and remitted back.
Mostyn fought back, saying he had a right to know why he was wrong, see Rochdale Metropolitan Borough Council v KW & Ors (Rev 1)  EWCOP 13 (13 March 2015).
Mostyn’s fight back was also appealed, and the Court of Appeal this week gave its judgment in KW & Ors v Rochdale Metropolitan Borough Council (Rev 3)  EWCA Civ 1054 (20 October 2015) saying:
- The Supreme Court ruling in Cheshire West is not confusing it is clear and Mostyn must apply it (para 32); and
- The parties who agreed with each other that Mostyn was wrong were right, and Mostyn who asserted he had a right to know why, was wrong (para 27).
In the latest twist, the Law Society also reports that Mostyn, who had reserved the case to himself, had it removed from him by the Court of Appeal:
If you are a local authority worried by the sheer numbers of cases arising as a result of Cheshire West, and hoping some of these developments might help you out, now, I think, is the time to stop hoping: the Court of Appeal is now in line with the Supreme Court which in turn is in line with the European Court.
For me, Mostyn’s little rebellion encompasses several paradoxes:
- The Supreme Court ruling was not saying deprivations of liberty cannot happen, only that there must be proper scrutiny to make sure they are lawful. The more narrowly you seek to draw the definition of a deprivation of liberty the more people are deprived of the protection of the Deprivation of Liberty Safeguards. It is hard to see how it can help vulnerable people to try to remove safeguards from them – and frankly, it feels like HL all over again;
- If there is concern about the cost of all this, it is hard to see how re-litigating philosophical arguments about deprivation of liberty can help (they are philosophical arguments – Mostyn quotes JS Mill ‘On Liberty’ directly in para 14). It seems to me the parties in Rochdale did a much better reality check than Mostyn when they all agreed this was a deprivation of liberty which they just wanted authorised.
A few little words in the ruling removing Mostyn from the case are going to be significant:
“the review should be conducted by a different judge, who need not be a high court judge” (para 33)
If the High Court is getting above itself, the Court of Appeal reminds us it can take this away from high court judges and give it to judges lower still, who will just get on with implementing it.
Some other commentary: