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Fundamental right to liberty

Has Mr Justice Mostyn been engaging in a perverse 'frolic', asks Laura Davidson

9 June 2015

The recent case of Rochdale MBC v KW and Others [2015] EWCOP 13 represents an unusual twist in the continuing saga of Surrey CC v P & Others: Cheshire West and Chester Council v P & Another [2014] AC 896.

KW was provided with a
home care package by a jointly funded agency. Ignoring the parties' unanimous view that KW's restrictions amounted
to a deprivation of her liberty, the Court of Protection (CoP) held that Lady Hale's 'acid test' was not satisfied, the care arrangements were in KW's best interests, and the restrictions could not possibly breach article 5 of the European Convention
on Human Rights (ECHR).

KW was not being constrained from leaving, as she lacked the physical or mental ability to exercise such freedom. If her limited mobility deteriorated and she became house-bound, any deprivation of liberty would 'diss...

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