A recent court decision is set to fundamentally change the way that the Deprivation of Liberty Safeguards are applied.
The recent decision in the case of Cheshire West and Chester Council v P  UKSC 19 on appeal from:  EWCA Civ 1257;  EWCA Civ 190 is set to fundamentally change the way that the Deprivation of Liberty Safeguards are applied.
From a legal practitioners point of view, since October 2007 when the Mental Capacity Act 2005 was implemented, the Deprivation of Liberty Safeguards have been clear in theory, but the question of what amounted to a deprivation of liberty was always somewhat woolly and hard to pin down. Read any of the mountain of material available and you were pointed towards considerations of ‘relative normality’, ‘best interests’ and how vigorous the client’s protestations were about their place of residence. Ask somebody on the ground such as someone from Adult Social Care and you were asked to consider where on a mythical scale the restriction of your client’s freedom of movement sat and whether that amounted to a deprivation of liberty. In short, nobody seemed to have a definitive answer.
However, the judgement handed down by the Supreme Court in the case that is now commonly referred to as “Cheshire West” now provides that clarity that we all need in order to ensure that we are able to understand and implement the DOLS effectively. Gone are the complex considerations of comparators, context, purpose, motive and intention referred to by Lord Justice Munby in the appeal judgement and instead, like a breath of fresh air, Lady Hale, Deputy President of the Supreme Court talks of “a recognition that human rights are for everyone, including the most disabled members of our community, and that those rights include the same right to liberty as has everyone else.”
She continues, “In my view, it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else.”
And, “Those rights include the right to physical liberty, which is guaranteed by article 5 of the European Convention. This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty. But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.”
The full Judgement (http://supremecourt.uk/decidedcases/docs/UKSC_2012_0068_Judgment.pdf) is of course much lengthier and more detailed but these key statements seem, to me, to carry the ethos of the findings.
The test, therefore, seems to be whether the living circumstances of a person who lacks mental capacity would amount to a deprivation of liberty for you or I, to which the answer can only be yes, in many more situations than we previously thought.
The final hurdle must now be how the increased requirement for authorisation will be met administratively to ensure that we are safeguarding the human rights of the most vulnerable people in our society.
If you have any questions please contact Clare King on 0113 336 3363.
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