‘This was an appeal against a ruling by Mostyn J in the Court of Protection concerning a consent order between an incapacitated woman, the appellant, and the local authority ([2015] EWCOP 13). The judge had held that the 52 year old appellant, who had been severely incapacitated following surgery, had not been subject to deprivation of liberty contrary to Article 5 of the European Convention on Human Rights by her 24 hour care package. In his view, the test for deprivation of liberty in Cheshire West and Chester Council v P [2014] UKSC 19 did not apply. In paragraph 17 of his judgment Mostyn J remarked that it was impossible to see how the protective measures in place for KW could linguistically be characterised as a “deprivation of liberty”. Quoting from JS Mill, he said that the protected person was “merely in a state to require being taken care of by others, [and] must be protected against their own actions as well as external injury”. At para 25, he said that he found that KW was not “in any realistic way being constrained from exercising the freedom to leave, in the required sense, for the essential reason that she does not have the physical or mental ability to exercise that freedom”.’

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UK Human Rights Blog, 21st October 2015

Source: www.ukhumanrightsblog.com