Supreme Court overturns Cheshire West: What does this means for deprivation of liberty?

In a landmark judgment on 2 June, the Supreme Court fundamentally reshaped the law on deprivation of liberty, pursuant to Article 5 of the European Court of Human Rights (ECHR), with its judgment in A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998. The unanimous decision of the Supreme Court was that the case of Cheshire West was wrongly decided and should be overruled. 

What are the changes?

The key changes are:

• The Supreme Court has abolished the “acid test” (whether someone is not free to leave and under continuous supervision) set out in Cheshire West, and state that this went beyond the law of the ECHR.
   
• A “multifactorial approach” should be adopted to consider whether an individual is deprived of their liberty. The judgment provides limited comment or guidance on what the “multifactorial approach” will look like in practice, except for stating that the “court must focus on their concrete situation and must take account of the whole range of factors in the particular case, including the type, duration, effect and manner of implementation of the measures in question.”
   
• A key part of this approach will be looking at the individual’s own wishes and preferences. Even if the individual has been assessed as lacking capacity to make decisions on their residence and care, if the individual is happy with their care arrangements and is able to express this, it will be considered that they are consenting to their care arrangements. As a result, there will be no deprivation of liberty (DoL). 
   
• If an individual is living in their own home, in accordance with their wishes and feelings, it's less likely they'll be considered to be deprived of their liberty. For there to be a deprivation of liberty in this setting, the restrictions in place at home must be severe or extensive, such as restraint, medication or seclusion. 
   
• If an individual is considered to be in a minimally conscious state, they're likely to not be deprived of their liberty, as the court considered they have no liberty to be deprived of. In other words, as they cannot physically leave off their own accord, their liberty isn't being deprived.

The implications

Given the nature of the way this matter was referred to the Supreme Court, there's no right of appeal to the ECHR. Instead, the lower courts will now be expected to grapple with the question of what a deprivation of liberty is. It's expected that there will be various first instance judgments in the coming months. 

The implications can be neatly summarised as follows:

• Fewer safeguards in place for vulnerable individuals;
• Reduced court oversight on care arrangements;
• A potential increase in judicial review matters;
• Where it is unclear if the arrangements amount to a DoL – the Court of Protection (CoP) can determine the question.

It's now likely that significant numbers of individuals will no longer be considered deprived of their liberty. As such, they'll lose independent oversight from Best Interest Assessors and also lose access to statutory advocates, such as relevant person’s representatives and some Independent Mental Capacity Advocate and (CoP) Rule 1.2 Representatives. These roles provide vital independent oversight and ensure that concerns about care arrangements can be raised effectively.

Care Act Advocates

Theoretically, there should now be an increased use of Care Act Advocates to help facilitate individuals’ participation in their care planning, if there's no other suitable person able to assist. However, this form of advocacy is more limited in scope and may not provide an equivalent level of protection.

How those leaving the care system may be affected 

There's likely to be a significant reduction in the amount of streamlined COPDOL11 (Re X) applications, and this will predominantly affect the cohort of individuals who are leaving the care system and transitioning to adult services. There will be a lack of objective court scrutiny over whether the care arrangements for these individuals are in their best interests. 

What about other protections?

The Supreme Court outlined that the other protections under the ECHR remain in place such as Article 2 – right to life, Article 3 – prohibition against torture and inhumane treatment and Article 8 – freedom of private and family life, home and correspondence. 

However, given the lack of legal aid to make claims, the lack of advocates to bring claims on behalf of people and the high threshold which needs to be met for a successful claim, it's unclear the practical use of the these rights for the individuals who may be subject to abuse and neglect with no one to voice their experience. 

Way forward

Given the change in the legal test and the lack of clarity of its application in the real world, the CoP will still be making best interests decisions on behalf of people who lack capacity where required. In addition to its usual day to day work, it's anticipated that CoP will now have to hear argument on and determine:

• Whether there is a deprivation of liberty;
• Whether someone is able to provide valid consent to the arrangements;
• If someone does not object to their care arrangements but their loved ones object, whether the arrangements amounts to a deprivation of liberty;
• If there is not a deprivation of liberty, are the care arrangements the least restrictive way of meeting their needs. 

Means tested legal aid does remain in place, so legal representation is available for people, subject to their financial eligibility. 

Conclusion

In practice, the narrowing of what constitutes a deprivation of liberty is likely to leave many vulnerable individuals without the protections that previously applied to their care arrangements. 

Furthermore, the resulting uncertainty will inevitably increase the risk of inconsistent decision-making and fall to the lower courts to resolve. It's imperative that practitioners take a robust and holistic approach to assessing whether a person is deprived of their liberty, including assessing and understanding an individual’s wishes and feelings on their care arrangements, and that any assessments are tailored to an individual's specific circumstances. 

Families with concerns about vital care packages breaking down due to a lack of DoL safeguards following the judgment should seek specialist legal advice.  

Find out more about Irwin Mitchell's expertise in supporting individuals and families affected by DoL issues at our dedicated deprivations of liberty section. 

Irwin Mitchell represented the National Autistic Society and Mencap in the Supreme Court decision and was a party in the original Cheshire West case.