Deprivation of liberty – guidelines from the Supreme Court

A recent judgment of the Supreme Court will almost certainly lead to many more incapacitated adults admitted to a care setting in England and Wales being found to be deprived of their liberty.

A person can only be deprived of their liberty in a care home or hospital if it is authorised by the court or by the procedures called the deprivation of liberty safeguards under the Mental Capacity Act 2005.  

While many people may believe that this only applies to care homes and mental health settings, there is a potentially huge general application to all providers dealing with incapacitated adults, including acute hospitals.

The Cheshire West judgment, as it is called, has introduced a new “acid test” in deciding whether an incapacitated adult is being deprived of their liberty, which comprises two key questions:

• is the person subject to continuous supervision and control?
• is the person free to leave?     

To be deprived of their liberty an incapacitated adult must be subject to both continuous supervision and control and not be able to leave their placement. In addition, the area and period of confinement are ingredients of deprivation of liberty.  

‘To be deprived of their liberty an incapacitated adult must be subject to both continuous supervision and control and not be able to leave their placement’

The difficulty for the sector is that the Supreme Court did not come up with prescriptive criteria as to what is meant by continuous supervision and control or not being free to leave a placement.

Given that one of the settings the Supreme Court looked at was a domestic in nature, it would appear that the supervision does not have to be constant. Lady Hale, who gave the leading judgment, did identify the following as being relevant:

• control over who the incapacitated person can have contact with;
• control over the activities that the person is allowed to participate in;
• not being able to leave the placement without supervision; and
• not being free to leave the placement permanently in order to reside elsewhere in a different type of setting. 

What we do know is what the test does not include. The Supreme Court was clear that the following are not relevant as far as the test is concerned:

• the person’s compliance or lack of objection;
• the relative normality of the placement; and
• the reason or purpose for the particular placement. 

Subject to any clarification the courts may add in the future to the concepts of continuous supervision and control and not being free to leave, it seems highly likely that many dementia patients in hospitals will be judged to be deprived of their liberty.

With the exception of the argument that the duration of a patient’s hospitalisation is insufficient to amount to a deprivation of liberty, it appears that there is no material difference between the situation of a dementia patient whether they be in hospital or a care home. If the two ingredients of the “acid test” are satisfied there will be a deprivation of liberty that requires authorisation.

‘It seems highly likely that many dementia patients in hospitals will be judged to be deprived of their liberty’

Hospitals should therefore have due regard to patients who could potentially fall under the test.

As recognised by Jenni Richards QC of 39 Essex Street in a podcast video on her chambers website, a further consideration hospitals will have to make is in relation to patients who are unconscious in hospital. In particular, those in intensive care units who undoubtedly lack capacity due to their inability to formulate and communicate a decision.

It may be simple for hospitals to conclude that there is no deprivation of liberty in cases where patients in post-operative care have consented to the care upon admission.

However, if for example, a patient is admitted as a result of a road traffic accident or heart attack and they are in a minimally conscious or persistent vegetative state, there will be a cogent argument for saying that such patients are deprived of their liberty. This issue was specifically flagged up to the Supreme Court during the course of the Cheshire West hearing but it was not separately addressed in the judgment.

Implications for hospitals

The Judgment therefore has huge implications for hospitals looking after such patients. Many more urgent authorisations will need to be made by hospitals (known as “managing authorities” in the jargon of the Mental Capacity Act) backed up with applications for standard authorisations to local authorities (the so called “supervisory authorities” under the same legislation).  

What should hospitals do in response to the Cheshire West judgment? Providers should undertake their own urgent review of incapacitated residents in their care applying the Cheshire West test. Given the uncertainty around the scope of the new test, hospital providers should obtain legal advice to inform decision-making.

‘If there is any doubt about whether a patient is being deprived of their liberty, a provider should err on the side of caution’

A provider trust will want to avoid criticism from the Care Quality Commission and also ensure that patients who do fall within the Supreme Court test are lawfully detained. If there is any doubt about whether a patient is being deprived of their liberty, a provider should err on the side of caution and make an urgent authorisation followed up by an immediate application to the local authority for a standard authorisation. It will then be the responsibility of the local authority to make a decision on the application.      

It is hoped that the Department of Health will issue guidelines to the sector about the Cheshire West judgment as a matter of priority. Further down the line, one can expect changes to legislation to simplify the current deprivation of liberty framework which Lady Hale described as being bewilderingly complex.

However, any changes to the legislation will be some way off and in the meantime hospital providers will need to use the existing framework to ensure that appropriate authorisations are in place for the many thousands of patients who will now come within the new “deprivation of liberty” test.  

Neil Grant is a partner and Samantha Cox is a trainee solicitor with Ridouts LLP