What should care home managers consider when residents might have to be deprived of their liberty?
Paul Mounce, 15th December, 2016
To deprive someone of their freedom and liberty is generally regarded as unacceptable. However, there are some instances where a ‘deprivation of liberty’ can be entirely appropriate when providing good quality healthcare.
The Supreme Court judgement of 19th March 2014 – commonly known as Cheshire West – is an important one to consider in this debate.
This ruling effectively increased the need for care home managers to review their residents needs.
And to seek authorisation, either through the Court of Protection or the Deprivation of Liberty Safeguards (DoLS), for anyone who requires some sort of restraint and restrictions used in their best interests regarding the care they need.
The outcome of the Cheshire West case resulted in introducing an ‘acid test’.
This stated, for the purposes of Article 5 of the European Convention on Human Rights, that someone is considered deprived of their liberty if they’re under “continuous control and supervision” and are “not free to leave”.
If they also lack the capacity to consent to this deprivation of liberty, legal safeguards must also be put in place.
All three of these elements must be present for the acid test to be met.
The judgment of the Cheshire West case had a huge consequence for those people working in the care home sector.
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.
Unsurprisingly, the highest number of applications to relevant authorities under the DoLS system are made by care homes.
Help for care home managers and their staff Care home managers play an important role in making the deprivation of liberty safeguards work.
When putting together care plans for their residents, they often have to identify those who lack the capacity to consent to their care.
They have to consider whether any restrictions or restraints being proposed are in the best interests of the person to keep them safe.
This may constitute a deprivation of their liberty (DoLS). To implement this course of action they must get permission from their local authority.
If you’re working in a care home or hospital where you consider a person is being deprived of their liberty, steps should be taken to see if care could be provided in a less restrictive way.
If this seems unavoidable, an application should be made for a standard authorisation at the same time as an urgent authorisation is given.
What this means for you If no authorisation is in place, you could be at risk of an unlawful detention claim.
And you’ll have no defence in respect of cases involving claimants who lack capacity due to the Limitation Act not applying to those cases.
So while it may be seen as a time-consuming exercise, it’s wise to spend that time and effort.
Rather than risk being caught out later and having claims made against you further on down the line.
Care Providers might also wish to be especially careful to ensure appropriate financial arrangements and Powers of Attorney are in place.
Both for new residents and existing residents whose care is changing due to their declining health or mental capacity.
Need advice? Get in touch today Do you need help preparing Powers of Attorney, deprivation of liberty/DoLS applications?
Or advice on mediation between residents, their families and your organisation providing care?
Please call Paul Mounce on 01482 324252.
You can find out more about our range of Private Client services here.
Cheshire West and Chester Council v P: the facts P was born with cerebral palsy and Down’s syndrome and required 24 hour care which was provided by his mother up to him turning 37 years old.
He was able to walk short distances but needed a wheelchair to go further. He also required prompting and help with all the activities of daily living, getting about, eating, personal hygiene and continence.
When P’s Mother’s health began to deteriorate, it was decided by the local social services authority that she was no longer able to provide care for P.
In 2009, they obtained orders from the Court of Protection that it was in P’s best interests to live in accommodation arranged by the local authority.
The dispute arose when P’s mother argued that P, who lacked the capacity to make decisions about his care and residence, was placed under the responsibility of the state, was being deprived of his liberty and had no safeguards in place for their protective care regime to be regularly reviewed.
After being removed from his mother’s home, P lived in Z house from November 2009.
This was not a care home but a large bungalow, described by an independent social worker as cosy and with a pleasant atmosphere, and was located close to P’s family home.
At the time of the final hearing, P shared Z house with two other residents. There were usually two staff on duty during the day and one ‘waking’ member of staff overnight.
P received 98 hours additional one-to-one support and continuous supervision each week.
His routine consisted of attending a day centre four days a week and a hydrotherapy pool on the fifth. He also went out to a club, the pub and the shops, and saw his mother regularly at the house, the day centre and her home.
Intervention was needed to cope with challenging behaviours which he could exhibit. But he was not on any tranquillising medication.
By the time of the hearing before Baker J in April 2011, the principal issue was whether these arrangements amounted to a deprivation of liberty.
Baker J held that P was completely under the control of the staff at Z House, that he could not “go anywhere, or do anything, without their support and assistance” (para 59).
And “the steps required to deal with his challenging behaviour lead to a clear conclusion that, looked at overall, P is being deprived of his liberty” (para 60).
Nevertheless, it was in his best interests for those arrangements to continue:  EWHC 1330 (Fam).
The local authority, Cheshire West and Chester Council, appealed.
The Court of Appeal subsequently substituted a declaration that the arrangements didn’t involve a deprivation of liberty:  EWCA Civ 1257,  PTSR 1447.
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.
P’s mother and solicitor appealed to the Supreme Court arguing that “normality “ of P’s living arrangements were not relevant.
The key factor was that P was not free to leave his placement, which meant he was deprived of his liberty.
The Supreme Court agreed and P’s appeal was allowed.