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Cheshire West Judgment sets new ‘acid test’ for deprivation of liberty

For a sector already burdened with a plethora of regulatory requirements, the recent ‘acid test’ set by the Cheshire West Supreme Court Judgment means care providers will have to deal with another welter of paperwork. Ridout solicitor NEIL GRANT reports.

A recent Judgment of the Supreme Court will almost certainly lead to many more incapacitated adults in care homes in England and Wales being found to be deprived of their liberty. The Supreme Court decides on what constitutes a deprivation of liberty in a care context – tens of thousands more care home residents will now fall within the definition.

A person can only be deprived of their liberty in a care home or hospital if it is authorised by the court or by the procedures called the deprivation of liberty safeguards under the Mental Capacity Act 2005. The Cheshire West judgment as it is called has introduced a new “acid test” in deciding whether an incapacitated adult is being deprived of their liberty which comprises two key questions:

  • Is the person subject to continuous supervision and control?
  • Is the person free to leave?

To be deprived of their liberty an incapacitated adult must be subject to both continuous supervision and control and not be able to leave their placement. In addition, the area and period of confinement are ingredients of deprivation of liberty. The difficulty for the sector is that the Supreme Court did not come up with prescriptive criteria as to what is meant by continuous supervision and control or not being free to leave a placement.

Given that one of the settings the Supreme Court looked at was a domestic in nature, it appears the supervision does not have to be constant. Lady Hale, who gave the leading Judgment, did identify the following as being relevant:

Control over who the incapacitated person can have contact with;
Control over the activities that the person is allowed to participate in;
Not being able to leave the placement without supervision;
Not being free to leave the placement permanently in order to reside elsewhere in a different type of setting.

What we do know is what the test does not include. The Supreme Court was clear that the following are not relevant as far as the test is concerned:

The person’s compliance or lack of objection;

The relative normality of the placement; and

The reason or purpose for the particular placement.

The Alzheimer’s Society has estimated that there are around 200,000 clients with dementia in care homes in England and Wales. Subject to what clarification the courts may add in the future to the concepts of continuous supervision and control and not being free to leave, it seems highly likely that the vast majority of dementia clients in care homes will be judged to be deprived of their liberty.

This has huge implications for care home providers looking after such clients. Many more urgent authorisations will need to be made by care home providers (known as managing authorities in the jargon of the Mental Capacity Act) backed up with applications for standard authorisations to local authorities (the so called “supervisory authorities” under the same legislation).

What should care homes do in response to the Cheshire West Judgment? Providers should undertake their own urgent review of incapacitated residents in their care, applying the Cheshire West test. Given the uncertainty around the scope of the new test, care providers ought to obtain legal advice to inform decision-making.

A provider will want to avoid criticism from the Care Quality Commission and also ensure that residents who do fall within the Supreme Court test are lawfully detained. If there is any doubt about whether a resident is being deprived of their liberty, a provider should err on the side of caution and make an urgent authorisation followed by an immediate application to the local authority for a standard authorisation.

It will then be the responsibility of the local authority to make a decision on the application. In terms of prospective residents, providers should address the deprivation of liberty issue as part of pre-admission planning. To further protect the interests of care home businesses, any discussions with local authorities should be recorded in writing given their potential evidential importance.

It is hoped that the Department of Health will issue guidelines to the sector about the Cheshire West Judgment as a matter of priority. Further down the line, one can expect changes to legislation to simplify the current deprivation of liberty framework which Lady Hale described as being ‘bewilderingly complex’. However, any changes to the legislation will be some way off and in the meantime providers will need to use the existing framework to ensure that appropriate authorisations are in place for the many thousands of residents who will now come within the new “deprivation of liberty” test.

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