What is a deprivation of liberty? Analysing the Supreme Court's decision in Cheshire West

The Cheshire West case set out that, where someone lacks mental capacity to make decisions about their care arrangements, they would be deprived of their liberty if the ‘acid test’ was met. The acid test was:

1. Are they subject to continuous supervision and control;
2. Are they free to leave; and
3. Are the arrangements made by the state. 

The Supreme Court has decided this test was wrong. 

It has replaced the acid test with a new, more complex test. However, it has not provided any practical guidance as to how to apply the test. Further guidance is awaited from the Department of Health and Social Care.

The new test for someone to be deprived of their liberty is:

1. An objective test;
2. A subjective test; and
3. The arrangements need to be made by the state. 

There can be overlap between the objective test and the subjective test 

The objective test

A multi-factorial approach needs to be taken into account, requiring an examination of the concrete situation of the arrangements in place, having regard to the paradigm case of a deprivation of liberty of confinement in a prison cell. 

The following should be taken into account; physical restrictions, the level of sedation and any chemical restrictions in place, any coercion, as well as the wishes and feelings of the person. Additionally, the purpose and circumstances of the arrangements should be taken into account. And, the closer the arrangements are to relative normality the less likely they are to be deprived of their liberty. If the person is not objecting then they are also less likely to be deprived of their liberty. If the person objects to the arrangements this means it is more likely to be a deprivation of liberty. Objections can take many forms.

The subjective test

The Supreme Court decided that even where someone lacks capacity to make decisions about their care and where they live, they can still provide valid consent for a deprivation of liberty through the expression of current wishes and feelings that go beyond mere acquiescence regarding their confinement. If they provide valid consent then the arrangements would not need to be authorised.  

It outlined that valid consent is not concerned with legal capacity but by “a person’s de facto understanding of their situation and how they experience it” and “A person may not have mental capacity to make decisions about their care and residence arrangements, but if they have a basic level of awareness and consciousness of their living arrangements that is sufficient to enable them to know and communicate whether they are happy or unhappy with them, they may be treated as able to give or withhold valid consent to confinement by an expression of their wishes and feelings.”

However, it is difficult to see that where someone has been assessed as unable to make a decision in relation to their residence and care, in accordance with s3(1) MCA, that they would be able to show the requisite basic level of awareness and consciousness of their living arrangements to provide the valid consent. For instance, if they are unable to 

1. Understand the relevant information;
2. Retain the information for the duration of the decision;
3. Use and weigh the relevant information; or
4. Communicate a decision

it is unclear how they will have an appreciation of the situation. 

Whether someone can provide valid consent is clearly going to be open to interpretation and needs to be considered carefully in every case.

The likely consequences of the Supreme Court decision

Under the new definition it is highly likely that significantly fewer people will be considered to be deprived of their liberty. This means that they will not be subject to the deprivation of liberty safeguards (DOLS) scheme and will not have a RPR appointed. They will not be subject to visits from best interests assessors. If they are not subject to a DOLS authorisation then they will not qualify for non-means tested legal aid. 

It is expected that thousands of people may no longer be subject to DOLS.  

Many community, court authorised, DOL cases will need to be reviewed. An assessment will need to be carried out to determine if the arrangements do amount to a DOL.

What can be done in light of the new decision

DOLS provide protections to some of the most vulnerable people in society. Without the independent reviews and advocacy there is increased risk of neglect and harm being caused to those people through their needs not being adequately met. However, there are still some safeguards in place. 

There will remain a number of people who object to their care arrangements and are likely to be subjected to DOLS and a s21A challenge can still be brought.  

We can raise legal arguments in support of eligibility for DOLS or a Court approved DOL.

Care Act advocacy remains in place and it must be noted that a family member/friend is not appropriate in this role if they just agree to the arrangements where the service user is objecting to the care arrangements. 

The Care Act guidance does provide for annual reviews of a needs assessment. It may be worth diarising the next review when a needs assessment has just taken place. The Care Act guidance is statutory guidance so should be followed unless there are cogent reasons for departure from the guidance. 

Where there are concerns that the care arrangements are not the least restrictive available, in accordance with s1(6) MCA, then an application can still be made to the Court of Protection for a determination as to what is in the person’s best interests. 

The Court of Protection can still determine whether the care arrangements do amount to a deprivation of liberty, it is just that if there is not a standard authorisation in place, the proceedings will need to be brought by a different procedure – but it is still possible and the Court of Protection remains the correct venue to determine the issue for people who lack capacity. 

Where there is a dispute as to whether someone is providing valid consent then this can also be determined by the Court of Protection. 

If there is a dispute over capacity, care, residence, contact with others, sex, using the internet and social media, medical treatment or any other welfare decisions then the Court of Protection is still the correct place to decide what is in the service user’s best interests. 

Additionally, the new judgment is silent on what happens where someone is not objecting to their care but their family/friends are objecting to the arrangements. This was the scenario of the case of HL v UK [2004] ECHR 471 (known as The Bournewood Case). If this is a situation then there could be an arguable deprivation of liberty which should be determined by the Court of Protection. 

Legal Aid is still available for general welfare Court of Protection proceedings, however, it is on a means tested basis and the client’s last 3 months’ bank statements would be required for proof of eligibility. 

Of course, the other protections of 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.  In certain cases, we can raise safeguarding arguments to use the Inherent Jurisdiction of the High Court to protect a vulnerable adult. 

Irwin Mitchell represented NAS and Mencap in this Supreme Court decision and a party in the original Cheshire West case. Our legal advisors are happy to speak with you to discuss the legal routes to protect your clients’ position.