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In a Gilded Cage: Liberty after Cheshire West

On 22 April 2014, the Court of Protection team presented a topical seminar on the Deprivation of Liberty Safeguards entitled, ‘In a Gilded Cage: Liberty after Cheshire West’.

Simon Burrows, junior counsel instructed by the Official Solicitor to represent P in the Cheshire West case, presented on the meaning, effect and ramifications of the Supreme Court decision for those who come under powers of the Mental Capacity Act, DOLS, and the Mental Health Act, and those advising them. The seminar attendees were Independent Mental Capacity and Mental Health Advocates, private client lawyers, health and social care practitioners and personal injury case managers. This was a popular event and well received by everyone who attended.

We particularly thank Simon for his interesting comments.

The purpose of the seminar was to try to answer some questions arising from the Supreme Court judgment in the combined appeals of Cheshire West and P & Q: [2014] UKSC 19: On appeal from [2011]EWCA Civ 1257; [2011] EWCA Civ 190. The Supreme Court Judges, led forcefully by Lady Hale of Richmond, re-defined the test for ascertaining whether or not a person without capacity to consent to their living and care arrangements was deprived of his or her liberty. Jess Flanagan has dealt with the judgment in detail in her post Court of Protection: the Supreme Court’s test for Deprivation of Liberty.

In his judgment Lord Neubeurger acknowledged the need for clear guidance and a focused test for deciding whether the circumstances of a particular case or individual involve a deprivation of liberty within article 5(4) of the European Convention on Human Rights (ECHR), or merely a restriction falling outside.

Lady Hale thankfully provided us with an ‘acid test’, which is to ask whether an individual is free to leave and whether they are subject to continuous control and supervision. But what do we think ‘not free to leave’ means, and how should this test be applied in practice? Most of those attending the seminar work with the Mental Capacity Act on a regular basis. They had been following the case and had read the judgment so there were a lot of questions from the floor.

Simon answered them all knowledgeably. The general message was that most individuals who lack capacity to make decisions concerning their care and treatment and are placed in an environment where they are not free to leave (without an escort) and are under constant control and supervision, will be deprived of their liberty. Their placement may be in their best interests, but nonetheless, it must be authorised.

We are all concerned about the pinch that Local Authorities and other statutory services will feel as a result of this decision, not least the Court of Protection, which will have to authorise circumstances that amount to a deprivation of liberty in all placements other than care homes and hospitals. Simon suggested that the ruling may encourage assessors to look more closely at whether someone does in fact lack capacity or not. I would really like to see this happen more frequently; it is, after all, the starting point.

Last week, Sir James Munby, the President of the Family Division and Court of Protection, made reference to the ‘rush of cases’ that are likely to come about as a result of the judgment. The Telegraph reported that he had doubts over whether the Court of Protection would be able to cope with the expected rush of cases and he warned that: ‘Councils could also face an “immense burden” from the cost of the extra legal cases”¦I want to try to bring some measure of administrative order and proper process into play in the light of the ramifications of the recent judgment of the Supreme Court.’

Since the seminar, I have been informed that the President is looking at drafting some guidance in respect of applications to authorise any deprivation of liberty where an individual lives in a supported living, or family home. We are yet to see what it might look like, but I hope this is the ‘administrative order and proper process’ that the President has spoken about. The message from the court is that they are aware of the implications arising from the Supreme Court judgment and the guidance would set out what information and evidence the court would need to make an application. It is encouraging to hear that the desirability for a straight forward procedure should not take away from the need to ensure that the voice of individual concerned is heard and that their rights to a speedy review of their deprivation of liberty and right to a fair trial are protected.

The advice to Local Authorities from the court is to try and hold back on any applications that could wait, but if necessary, to use the standard application forms for a personal welfare application.

I am hopeful that the court will not lose momentum on this, and the Guidance will be issued as soon as possible. The next issue for practitioners to grapple with is the availability of legal aid for those who are deprived of their liberty in a placement other than a care home or hospital. Currently, those deprived of their liberty pursuant to a Standard Authorisation have access to non means tested legal aid to fund representation. This is not the same for those in supported or independent living arrangements, as this is currently a different application to the court and not one which carries with it access to non means tested legal aid. The Ministry of Justice have some thinking to do.

Thank you to everyone who attended the seminar and made this such an exciting event to have been part of.