A Supreme Court judgement of 19 March 2014 in the case of Cheshire West clarified an “acid test” for what constitutes a “deprivation of liberty”.
The acid test states that an individual is deprived of their liberty for the purposes of Article 5 of the European Convention on Human Rights if they:
- lack the capacity to consent to their care / treatment arrangements
- are under continuous supervision and control
- are not free to leave
All three elements must be present for the acid test to be met.
A deprivation of liberty for such a person must be authorised in accordance with either the Deprivation of Liberty Safeguards (DoLS – part of the MCA), or by the Court of Protection or, if applicable, under the MHA 1983.
The Supreme Court further held that factors which are NOT relevant to determining whether there is a deprivation of liberty include the person’s compliance or lack of objection to the proposed care/treatment and the reason or purpose behind a particular placement. It was also held that the relative normality of the placement, given the person’s needs, was not relevant. This means that the person should not be compared with anyone else in determining whether there is a deprivation of liberty.
The Supreme Court also held that a deprivation of liberty can occur in community and domestic settings where the State is responsible for imposing such arrangements. This will include placement in a supported living arrangement. Hence, where there is, or is likely to be, a deprivation of liberty in such settings, this should be authorised by the Court of Protection. The Court of Protection has held that the acid test also applies in acute non-psychiatric hospital settings.
The judgment suggested that there may have been care arrangements in place that should have been subject to a formal DoLS authorisation, but applications had not been made. Consequently, it was expected that there would be a sharp increase in applications following the judgment.
In fact, the judgement resulted in a ten-fold increase in the number applications between 2013-14 and 2014-15 for health and care providers (who must submit requests for DoLS authorisations and Court of Protection applications) but particularly for the local authority teams who have responsibility for processing requests for authorisations and where appropriate, authorising any deprivation of liberty in care homes and hospitals.
It has also been clear from the official statistics and from speaking with local authorities that due to this increase in requests for authorisations, a number of local authorities were unable to process all applications in a timely manner and this has resulted in a ‘backlog’ of applications awaiting assessment. It is particularly important, given the level of applications being made, that robust procedures are in place to ensure that particularly vulnerable individuals can be identified rapidly, and appropriate action taken. The Association of Directors of Adult Social Services (ADASS) has shared practice in relation to prioritisation and produced a screening tool. The aim of the tool is to assist local authorities to respond in a timely manner to those requests which have the highest priority and many local authorities are currently screening and prioritising DoLS applications.