After Cheshire West

The Cheshire West case (P v Cheshire West and Chester council on appeal from [2011] EWCA Civ 1257; [2011] EWCA Civ 190) is significant because it clarified the point at which a person who has lost mental capacity is being deprived of their liberty by carers.
As a result of the Supreme Court's decision in March 2014, there is now a new definition of 'deprivation of liberty'. The test, which was outlined in the judgment, means that a larger number of vulnerable clients are now more likely to be deprived of their liberty. There are two parts to the new definition and they must co-exist to constitute a deprivation of liberty.
A person is deprived of their liberty if they are subject to continuous supervision and control, and if they are not free to leave.

In her judgment, Lady Hale responded to the question of whether liberty means something different to an adult who is for reasons of disability unable to take advantage of their liberty, or if liberty means the same for all. She said: "The first and most fundamental question is whether the concept of physical liberty protected by Article 5 of the European Convention on Human Rights is the same for everyone, regardless of whether or not they are mentally or physically disabled."

Section 64 (5) of the Mental Capacity Act 2005 (MCA 2005) states that references to a deprivation of a person's liberty have the same meaning as in article 5 (1) of the Human Rights Convention. The European Court of Human Rights has summarised the general principles in the context of people with mental disorders or disabilities: "The person must have a concrete situation and account must be taken of a whole range of criteria such as the type of deviation effects and manner of implementation of the measures in question," (Guzzardi v Italy (1980)
3 EHRR 333 paras 92-93).

Conditions for deprivation

A person could be regarded as having been detained even during a period when placed in an open hospital ward with regular unescorted access to the unsecured hospital grounds, and the possibility of unescorted leave outside the hospital.

In relation to placement of mentally disordered persons in an institution, it should not only be the objective element of a person's confinement that should be taken into account, but also the subjective element that he has not validly consented to the confinement.

There has been a deprivation of liberty where the patient has either been declared legally incapable and admitted to a psychiatric hospital at his legal representatives request, having unsuccessfully attempted to leave hospital, where he consented to admission but had subsequently attempted to escape. And where the patient was an adult and incapable of giving his consent for admission to a psychiatric institution which he had never attempted to leave.

The right to liberty is too important in a democratic society for a person to lose the benefits of convention protection, for the single reason that he may have willingly entered into detention, especially when it is not disputed that the person is legally incapable of consenting to or disagreeing with the proposed action. In accordance with Article 5 (1) there must be a positive obligation on the state to protect the liberty of those within its jurisdiction.

Before the case

Prior to the Supreme Court's decision on 19 March 2014, the mechanism for authorising (subject to safeguards) the deprivation of liberty of a person who cannot consent, was provided by amendments made to the MCA 2005.

Before this date, a person acting in connection with the care or treatment of the incapacitated person could restrain that person if it was to prevent harm, and was a proportionate response but could not deprive them of their liberty. The High Court could make an order under its inherent jurisdiction which had the effect of depriving the person concerned of their liberty, putting in place as many safe guards as practicable, including provision for review. That the inherent jurisdiction to grant such an order survives in an appropriate situation was confirmed by Baker J in NHS Trust v Dr A (2013) EWHC 2442 (COP), (2013) MHLO 69.

Most people who suffer a mental disorder are not treated under the Mental Health Act 1983. It does not prevent the informal admission of a patient requiring treatment for mental disorder to any hospital or registered establishment. They may not have resisted or objected to their admission or even to their continued stay in hospital or care home, and thus this does not give rise to any concern when they have capacity and it is their choice. However, questions could be asked as to how patients should be treated who may be compliant but who do not have the capacity to reach their own decisions about what is happening to them.

The Bournewood Gap

This is particularly the case so far as they are deprived of their liberty. As there were no safeguards in relation to the deprivation of their liberty, this was known as the 'Bournewood Gap' as a result of the decision of the European Court of Human Rights. This decided that Mr H L had been deprived of his liberty contrary to Article 5 (1) of the European Court of Human Rights as detention was arbitrary and not in accordance with a procedure prescribed by law; the procedure available to Mr H L did not comply with the requirements of Article 5 (4) as there was no procedure under which he would seek a merits review of whether the conditions for his detention remained applicable.

Section 50 and schedules 7 and 8 of the Mental Health Act 2007 countered this by amending the MCA 2005, rendering it lawful to deprive a person of their liberty either if it is as a consequence of an order of the Court of Protection or, if the deprivation of liberty is in a hospital or care home, then a standard or urgent authorisation is in force. The Court of Appeal confirmed that the scheme enacted by these amendments was both compliant with Article 5 (1) of the European Court of Human Rights and thereby plugged the Bournewood Gap.

Post Cheshire

Cheshire West's key feature is the acid test, outlined above. There is a need for a periodic independent check on whether the arrangements made for the person are in their best interests. Such checks need
not be as elaborate as those currently provided for the Court of Protection or Deprivation of Liberty Safeguards. We also should not regard the need for such
checks as in anyway stigmatising of them or their carers.

It is recognition of their equal dignity and status as human beings like the rest of society.

The new parameters for deprivation of liberty includes people who, although they lack capacity, are content to be in a care environment and their family is fully supportive of the care their loved ones are receiving. That will include adults with severe learning disabilities and those with dementia who cannot be allowed to leave unescorted because they will be at risk
of harm.

Local governments have already indicated that the judgement in the Cheshire West case is likely to lead to a significant change in the way that they make provision for those entrusted to their care and that there will be a significant drain on manpower and financial resources. It's questionable how many local authorities have reacted to this judgement and put the necessary provisions in place in the 10 months that have passed. The government's view is that the number of people who lack capacity to consent to the arrangements made for their care or treatment and who need to be deprived
of their liberty to protect their best interests in hospitals or care homes, should be relatively small.

In particular the government appears unwilling to accept the view expressed by some that every person who lacks capacity to consent to the arrangements made for their care or treatment, and who are in a care home from which they are not allowed complete freedom of egress, are inevitably deprived of their liberty within the definition of Article 5 of the European Court Human Rights.

Liberty should be for all. Far from disability entitling the state to deny people human rights, rather it places upon the state a duty to make reasonable accommodation to cater for the special needs of those with disabilities. It remains to be seen if the government takes a new look at deprivation of liberty and draws up fresh, and much needed new legislation.

Nicholas Buckman is a mental capacity specialist at Blake Morgan LLP