Care home briefing 143 – Cheshire West revisited?
Following the Supreme Court’s decision in Cheshire West, broadly everyone thought they now understood what amounted to a deprivation of liberty. Further, the concept of “relative normality” advocated by the Court of Appeal was rejected.
However, a recent Court of Protection decision by Mr Justice Mostyn suggests the Supreme Court will need to reconsider the application of Article 5 in the context of a deprivation of liberty at home.
The case related to a lady, KH, cared for in her own home. She had cognitive and mental health problems, as well as epilepsy and physical disability. She had a 24 hour care package funded by the Local Authority and CCG. They applied for an Order authorising a deprivation of liberty.
However, Mr Justice Mostyn declined to accept that a care package, provided for KH’s best interests in her own home, could amount to a deprivation of liberty within Article 5. In considering this, he reflected on the concept of liberty and what this would amount to for the individual receiving the care package. In the circumstances, he considered it was “inconceivable” that the provision of care within ones own home would be seen as an encroachment on her liberty. He also commented on the extent to which an individual’s “actual freedom” could be compared with that of someone of similar age and station whose presenting condition did not adversely impact on their freedom. The Judge felt that these were “fundamentally dissimilar”.
Although the Judge acknowledged that he was bound by the decision in Cheshire West, he distinguished this on the basis that KH did not meet the “freedom to leave test enunciated in Cheshire West, and that the facts were distinguishable”.
As far as the freedom to leave test was concerned, the Judge considered that this was predicated upon a decision to remove oneself permanently from the location (rather than simply “wandering out of the front door”). In this case the freedom to leave part of the acid test enunciated in Cheshire West was not met.
Furthermore, on the facts, KH was not being constrained from leaving, as she had neither the physical nor mental ability to do so.
Whilst this may be seen as an application of the Cheshire West case on its own facts, equally the considerations adopted by the Judge seem to resonate with the “relative normality” test that was rejected in Cheshire West. The KH case needs to be appealed and returned to the Supreme Court for review, although it the meantime, Cheshire West does of course remain binding law, and the safest approach would be to continue to apply the “acid test” referred to there to identify a deprivation of liberty and make the necessary application for a DoLS authorisation or an order from the Court of Protection.
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Guidance for providers on the use of surveillance
On 16 December CQC published guidance for health and adult social care providers who may be considering or already use either hidden or open surveillance/cameras. The guidance is available on the CQC website. If further advice is required, we can assist.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.