Deprivation of liberty after Cheshire West
By Ben Troke
We now have greater clarity as to what deprivation of liberty is, but at what cost, asks Ben Troke
On 19 March 2014, the Supreme Court handed down the long-awaited ruling in the conjoined cases of P v Cheshire West and P & Q v Surrey on the meaning of 'deprivation of liberty' for people who lack the mental capacity to make their own decision on residence and care package.
The court decided that universal human rights and equality mean that the threshold for deprivation of liberty must be the same for everyone, regardless of any disability, and that the existence of a deprivation is wholly distinct from any justification that may make it lawful - "a gilded cage is still a cage" in Lady Hale's words.
But as the dust settles, has it now brought clarity to this issue, and if so at what cost and what will the practical consequences be?
Clarity and uncertainty
The law is now certainly a bit clearer: if P is "under continuous supervision and control and is not free to leave", then there is a deprivation of liberty under article 5 ECHR. The purpose, benign or otherwise, the "relative normality", and P's own compliance are all irrelevant.
We might still expect some uncertainty where P is not free to leave, but is not "under continuous supervision or control" (or vice versa). There may be arguments over when something we would like to think of as "support" is actually "supervision and control". And sometimes the test logically will drive us towards finding a deprivation of liberty in the family home but we will be instinctively uncomfortable using that phrase in a domestic setting (as were the minority in the Supreme Court in the Surrey case).
Supported living
But on any view, Lady Hale's "acid test" above could be expected to describe the situation of a good many of the estimated 800,000 people with dementia (200,000 of whom are in care homes) and the 1.5m people with a learning disability. That's rather more than the current 2,000 or so who are under a Deprivation of Liberty Safeguards authorisation at any time.
Certainly, this ruling will do little to allay concerns expressed in the 13 March 2014 House of Lords report on the MCA/DOLS that "thousands or tens of thousands" of people are being deprived of their liberty without due process, recommending that the safeguards should be extended to supported living.
As well as NHS bodies and local authorities, private sector providers of residential care and supported living will also have to urgently review their practices, as lawyers acting for patients and their families will no doubt do.
We can now expect a surge in referrals to DOLS teams and to the court, where resources are already under great pressure. This increased workload will, of course, include the demand that will come with the person's right to regular review of their situation under article 5(4).
DOLS authorisations can only be for 12 months maximum, and review by the court of deprivations outside the scope of DOLS should be no less frequent.
Colossal implications
The resource implications could be colossal and, with the irony that the judgment was handed down on budget day, local authorities and others already facing the impact of austerity may now be under further pressure.
Lady Hale seemed to recognise this, saying that the periodic checks "need not be as elaborate as those currently provided for in the Court of Protection or in the Deprivation of Liberty Safeguards".
Those involved in these cases can also expect a lot more open scrutiny following the recent Practice Guidance (January 2014) that cases involving a deprivation of liberty should presumptively be published.
This greater openness may actually be a crucial part of the effective implementation of the approach that Lady Hale intended. Again echoing the House of Lords report, she was at pains to point out that people must come to understand that depriving someone of liberty is not necessarily an inherently bad thing, despite the negative connotations of the phrase. "Deprivation of liberty" needs a significant PR offensive, and we must get used to telling it how it is, or it may be effectively impossible to ensure that the appropriate safeguards are put in place in those situations.
We await with interest the government response to the judgment, the House of Lords' report, and any proposals to amend the law, and in particular whether DOLS (or its simplified replacement) will be expanded to cover community settings.
In the meantime, we have to work within the systems and processes that we have, and the real "acid test" may be how the new definition of deprivation of liberty is applied in practice. As Norman Lamb told the House of Lords committee, "you can get it absolutely right on paper but it does not necessarily mean that it happens on the ground and changes people's lives".
Ben Troke is a solicitor at Browne Jacobson
www.brownejacobson.com
.