Landmark Judgment Means More People Will Benefit From Regular Reviews of Protective Care

Specialist lawyers representing the mother of a disabled man taken into social services care say a landmark Supreme Court ruling handed down today (19 March 2014) will provide safeguards for people in similar situations after judges ruled that he was deprived of his liberty and should have regular independent reviews of his situation.

The 39-year-old man, known as ‘P’ for legal reasons, was the subject of a long running legal argument over the definition of the term ‘deprivation of liberty’ and the circumstances in which safeguards must be put in place to protect vulnerable adults.

The local council, Cheshire West and Chester Council, had removed him from his mother’s home and placed him into the care of social services. However, expert Court of Protection lawyers from Irwin Mitchell acted for P’s mother in successfully arguing that the law requires safeguards to be put in place for people in P’s position so that their protective care regime is regularly reviewed.

P has been diagnosed with a number of conditions, including cerebral palsy and Down’s syndrome and as a result, he lacked the mental capacity to make decisions about his own welfare.

The Supreme Court has today ruled that P was “under continuous supervision and control and was not free to leave” and was therefore deprived of his liberty.

Irwin Mitchell say the landmark case is hugely significant in health and social care as it now means that anyone meeting this definition will be deemed to be deprived of their liberty and will benefit from regular independent reviews to ensure that it is the most appropriate system of care for that individual.

Lawyers say it will affect thousands of people across the country who do not have the mental capacity to make decisions for themselves, including many elderly dementia patients and other disabled adults.

This judgment, in what has become known as the ‘Cheshire West case’, was much anticipated by those working in the field of health and social care, many of whom felt that the previous law in this field was confusing and led to fewer people being given the protection of regular independent reviews.

These reviews will come via an existing system called the Deprivation of Liberty Safeguards, or via an order from the Court of Protection itself.

Commenting on the Supreme Court's judgment, Mathieu Culverhouse, a specialist Court of Protection lawyer at Irwin Mitchell who acted for P's mother, said:

Expert Opinion

This judgment provides much needed clarity on the issue of deprivation of liberty.

“The Supreme Court has provided a simple test to decide if the individual is deprived of their liberty which will be far easier to apply than the previous test and which will afford far greater protection to vulnerable people.

“P’s mother welcomes this ruling, as it now gives her the peace of mind that her son’s placement will be reviewed regularly to ensure that the restrictions placed on him are appropriate and in his best interests.

“This case now sets a precedent that anyone who meets the new legal test will be considered to be deprived of their liberty and subject to a protective care regime. People in P’s situation who lack the mental capacity to make decisions for themselves, whether as a result of dementia, learning disabilities, brain injury or mental health problems, should have the benefit of regular independent reviews to ensure that their placement and any restrictions on their movement are still in their best interests.” Mathieu Culverhouse - Partner

Background Timeline

The case started in the Court of Protection social services became concerned about P living at home with his mother. Although P’s mother eventually agreed that he should move into the care of the local Council, a dispute arose as to whether this placement amounted to a deprivation of liberty and whether this therefore needed to be authorised by the Court. 

In the original court proceedings the judge, Mr Justice Baker, ruled that P was deprived of his liberty and that he should therefore be the subject of regular reviews by the Court.  However, the local authority, Cheshire West and Chester Council, appealed this decision.

The Court of Appeal then ruled that P was not deprived of his liberty and that it was necessary to take into account the reason why P had been placed where he was and to compare the ‘normality’ of his situation with that of any other person with the same disabilities.

The Official Solicitor, acting for P, appealed this decision to the Supreme Court, with the support of P’s mother, who instructed Irwin Mitchell. Together, they argued that the reasons why P was placed where he was, and the ‘normality’ of the placement were not relevant, but that the key factor was that in all practical terms P was not free to leave his placement and this therefore meant that he was deprived of his liberty.

The Supreme Court decision provides clarity and the legal test to be applied will now be well understood by families and health and social care professionals when considering which patients will require regular independent reviews.

Read more about Irwin Mitchell's expertise in Protecting Your Rights.