A LANDMARK judgement from the Supreme Court has found Cheshire West and Chester Council deprived a severely disabled man of his liberty.
The a 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’.
P has been diagnosed with a number of conditions, including cerebral palsy and Down’s syndrome, and as a result lacked the mental capacity to make decisions about his own welfare and was therefore kept under continuous supervision by the council authorities for his own safety.
The Supreme Court ruled that P was ‘under continuous supervision and control and was not free to leave’ and was therefore deprived of his liberty.
Throughout the proceedings Cheshire West and Chester Council was praised for the standard of care offered to the man, but they lost the case as the court said there should be regular independent reviews of the man’s care to ensure the care given was still in his best interests.
Lawyers for P’s mother argued successfully 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.
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 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.
This ruling will have a massive impact on the care of thousands of people across the country, including severely disabled adults who lack the mental capacity to make their own decisions and elderly dementia patients.
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: “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 gives her the peace of mind that her son’s placement will be reviewed regularly to ensure 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 their placement and any restrictions on their movement are still in their best interests.”
Mark Palethorpe, Cheshire West and Chester Council’s corporate director of strategic commissioning, said it was important to recognise CWaC had acted lawfully throughout. He said: “We are relieved the outcome of the ruling clarifies the definition of the term ‘deprivation of liberty’, something which health and social care professionals across the country have grappled with for some time.
“From the outset with this long-running landmark case the level and quality of care that P has received from this authority has never been called in to question and his care will continue as we move forward.
“Indeed, the judgements in all three court cases have noted the very great efforts by the authority and care staff to ensure P’s life was as normal as possible and the level of care and support needed to ensure this are necessary and in his best interests.
“What was called into question is whether the 24-hour supervision and care required by P – born with cerebral palsy and Down’s Syndrome – amounted to a deprivation of his liberty as he was not free to leave should he wish – a point of law issue.
“Today’s ruling states that although he is unable to make decisions for himself, the fact he is not free to leave his accommodation independently does constitute a deprivation of liberty and as such regular independent reviews of his care should take place.
“It is important to recognise that at all stages Cheshire West and Chester Council has acted lawfully and in the best interests of P.”
Despite this Mr Palethorpe warned the financial consequences of the ruling could be “huge”. He added: “The consequences of this judgment for health and social care nationally – both financially and in terms of care processes – are huge.
“What we must look to address now is the significant local and indeed national implications that this ruling leaves us with regarding the circumstances in which safeguards must be put in place to protect vulnerable adults who are unable to make decisions for themselves.
“People who on March 18 would not have been subject to a deprivation of liberty order will now be so. This includes people who, although they lack capacity, are content to be in a care environment and their family is fully supportive of the care their loved ones receive.
“That will include adults with severe learning disabilities and adults with dementia who cannot be left to leave unescorted because they will be at risk of injury.
“As a matter of urgency we will be working with all our health and social care partners to fully comprehend the task at hand and the resources required, in terms of best interest assessor and medical practitioners, all of whom have roles prescribed by the deprivation of liberty procedures.
“It could, therefore, have significant cost and procedural implications for local authorities across the country.”