The Mostyn Objection

By Sir Nicholas Mostyn, 19th November 2025

The writer and political salonnière Jeanne Marie “Manon” Roland was guillotined in Paris on 8th November 1793. Legend has it that her last words on the scaffold were, “O Liberté, que de crimes on commet en ton nom!”—“Oh Liberty, what crimes are committed in your name!”

Her warning has proved doggedly durable.

In our own time, the majority’s ruling in Cheshire West [2014] AC 896 has meant that, purportedly in Liberty’s name, tens of thousands of mentally disabled citizens now fall within the law’s definition of state detention.

I have long objected to the majority’s definition of liberty and its deprivation as statist, unrealistic and patronising. I remain astounded that Lord Sumption, of all people, should have joined the majority in their definition.

I have expressed my objection in a number of judgments^[1] and in a fiery memorandum submitted to the Joint Committee on Human Rights, which was then considering the proposals to reform the deprivation of liberty safeguards. That memorandum  is attached in the Appendix to this blog[^2]. I’m delighted to give it another outing here in the light of the recent hearing in the Supreme Court on the reference from the Attorney General of Northern Ireland (AGNI) concerning the proposal  to amend the deprivation of liberty safeguards applicable in the Province.

I have read the printed cases of the parties and listened to the submissions made by their counsel. I have also read the blogs on the Open Justice Court of Protection Project website.

Naturally, I was delighted that counsel for the AGNI, as well as counsel for the UK Secretary of State for Health and Social Care, considered that my pronouncements in a sequence of cases concerning the true meaning of the decision of the Supreme Court in Cheshire West were correct.

I read and listened very carefully to the arguments in support of retention of the unyielding, monolithic, absolutist “acid test” propounded in Cheshire West but I remain completely unconvinced. It is worth reflecting on what the phrase “an acid test” actually means.  Back in the day, there was literally a chemical test for gold that used nitric acid (HNO₃).  Nitric acid would dissolve base metals such as silver, brass and copper, but gold did not react. It was an infallible test. So it is now used rhetorically to describe any proposition that is said really to prove the truth of something. An acid test admits of no nuance. It admits of no discretion. It is entirely black-and-white.

It was as a result of this absolutist interpretation that I found myself listening to a completely anomalous position adopted by the Charities – namely that that the views of mentally disabled persons count for nothing in determining whether they are under state detention or not.

I do understand that it is only by shoehorning mentally disabled people into and through the acid test that they get some kind of assurance that the state will recognise their existence and consider their best interests.

And so, as always, it boils down to money. If the care of the mentally disabled was properly funded in this country, the Charities would not be in the crazy position of having to argue that mentally disabled people being looked after at home are in fact in state detention.

As to the actual legal question, I do agree with my fellow bloggers that it was quite difficult during the course of the hearing to keep one’s attention firmly focused in circumstances where there was no factual foundation to the case before the court and where the discussions seemed to have more in common with a philosophy seminar at All Souls College rather than a hearing in a courtroom.

However, I was (unsurprisingly) completely persuaded that the absolutist interpretation of the Supreme Court is not consistent with the Strasbourg jurisprudence and, therefore, given the terms of section 64(5), Cheshire West does not strictly bind courts of first instance.

I am sure that were the matter to be reconsidered in Strasbourg, the court would insist in each case that (a) an intense fact-specific analysis is undertaken and (b) before someone can be declared to be in state detention, they must be confined in the sense that they are not merely physically prevented from leaving the place in question but stopped from going to a real-life destination of choice. It is only by adopting this interpretation of the first component of Storck v Germany (2005) 43 EHRR 96 (Stork 1) that one can avoid the absurd paradox referred to above. Such an interpretation would also give due respect to the intentions of the framers of the Convention who quite plainly intended Article 5 to apply to state detention in the natural and normal sense of that concept.

So, the patient in Ferreira, R (On the Application Of) v HM Senior Coroner for Inner South London [2017] EWCA Civ 31 plainly was not confined in the normal sense of that expression. The reason the patient could not leave was because she was insensible. The decision was so obviously correct that the Supreme Court declined permission to appeal. Similarly, Katherine in the Rochdale case [2014] EWCOP 45 was obviously not confined in that normal sense. She was scarcely ambulant. It was not going to be long before she was going to need assistance to move at all. To say that because she could just about make it to the front door meant that she was being confined under Stork 1 whereas in a few months’ time she could not do so and therefore would not be confined, is, with respect, completely ridiculous. And even if she could make it out of the front door, it was not for the purposes of going to a real life chosen destination. So, she wasn’t being confined in that sense either.

I am absolutely confident that Strasbourg would reach the same decision. I therefore hope that these Supremes will “clarify” the current test to conform with the suggestion I have made in the appendix and which I repeat here:

An incapacitated adult will 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.

Two afterthoughts

1.      I do think that Celia Kitzinger was a bit hard on the Supremes in her blog post. I agree that it was a frustrating experience listening to the dialogue between counsel and bench neither of whom had any practical experience of administering the law of mental capacity. The fact is, however, that the Supremes have to work incredibly hard. They are given one reading day each week but that is often consumed by applications for permission to appeal; or in writing their own judgments; or in reading and suggesting amendments to  colleagues’ judgments. It is for this reason that (so I am led to believe) one of their number in each case is normally chosen to be the Judge Rapporteur and who is then expected to make the running in submissions, with the others picking up the details as the case proceeds. The quality of the judgments of the Supremes when they emerge is always of  the highest order, and often stands in stark contrast to the quality of judicial interrogation during the hearing.

2. At the time that I heard Rochdale I was completely baffled by the stance of the local authority which had applied to the court for a declaration that Katherine was deprived of her liberty. The consequence of this declaration would be, and was, to impose an enormous financial burden on Rochdale on top of the huge sums that they paid for the daily care of Katherine. One would have thought that Rochdale would have wanted to have been spared those additional expenses, thereby freeing up money for its numerous hard-pressed obligations. I had assumed that when I turned down the application Rochdale would have been very happy. But no, Rochdale appealed the decision and when I turned down the application a second time it appealed again. It’s almost as if it was determined to spend its money on the elaborate legal panoply that attends state detention rather than on other necessary things. Rochdale’s stance was not atypical. It is incomprehensible.

Sir Nicholas Mostyn is a retired High Court judge  and was before that a barrister and QC specialising in big divorce settlements. He was diagnosed with Parkinson’s Disease in 2020 and launched the King’s Parkinson’s Charitable Fund with Professor Ray Chaudhuri in June 2024. Sir Nicholas has launched two highly successful podcasts, Movers & Shakers and Law & Disorder, with Baroness Helena Kennedy KC and Lord Charlie Falconer.

^[1] _{Rochdale Metropolitan Borough Council v KW & Ors [2014] EWCOP 45,  The London Borough of Tower Hamlets v TB & Anor  [2014] EWCOP 53,  Bournemouth Borough Council v PS & Anor [2015] EWCOP 39, Re CD [2015] EWCOP 74.}

^[2] _{In the printed case for the Secretary of State, it was stated that I had provided the memorandum following my retirement. That is not so. I provided it while I was a serving High Court judge. I do not think, however, this means that it carries more weight}

APPENDIX

This is the written evidence from Sir Nicholas Mostyn in response to  the three questions that the Joint Committee on Human Rights asked witnesses in the inquiry The Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards (HC 890 / HL 161):

1. Whether the Law Commission’s proposals for Liberty Protection Safeguards strike the correct balance between adequate protection for human rights with the need for a scheme which is less bureaucratic and onerous than the Deprivation of Liberty Safeguards
2. Whether the Government should proceed to implement the proposals for Liberty Protection Safeguards as a matter of urgency
3. Whether a definition of deprivation of liberty for care and treatment should be debated by Parliament and set out in statute.

************************************

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.”
6. 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. 
7. 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.  
8. 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.
9. 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.
10. 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) 
11. 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? 
12. 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)?   
13. 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 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.
14. I agree with the causative analysis and suggest that it should be applied across the board in all cases of mental incapacity. 
15. The 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.
16. 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: (a) she is prevented from removing herself permanently in order to live where and with whom she chooses; and (b) the dominant reason is the continuous supervision and control to which she is subjected, and not her underlying condition. This would do no more than put Storck (1) on a statutory footing and specify it in accordance with the recent authorities. 
17. 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 promote 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.
18. 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. 
19. 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.”
20. 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.
21. 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

[1] _{The supposedly “simple” acid text has generated a host of highly complex decisions in its application to children.  See, for example, Re D (A Child) (Deprivation of Liberty) [2015] EWHC 922 (Fam), [2016] 1 FLR 142; In re AB (A Child) (Deprivation of Liberty: Consent) [2015] EWHC 3125 (Fam), [2016] 1 WLR 1160, [2016] 2 FLR 601; Birmingham City Council v D [2016] EWCOP 8, [2016] PTSR 1129 (on appeal Re D (A Child) [2017] EWCA Civ1695); Re D (deprivation of liberty declaration) [2016] EWFC B31; A Local Authority v D, E and C [2016] EWHC 3473 (Fam); Re T (A Child: Care Order: Beyond Parental Control: Deprivation of Liberty: Authority to Administer Medication) [2018] EWFC B1; and Re A-F (Children) [2018] EWHC 138 (Fam).} 

[2] _{http://www.kingston.ac.uk/news/article/1599/22-dec-2015-uk-supreme-court-president-lord-neuberger-talks-luck-land-law-and-prince-charles-letters-at/}

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