The clarity around deprivations of liberty provided by the Supreme Court in a landmark ruling this week is welcome but the consequences of the judgment are “huge”, one of the local authorities involved in the case has said.
Cheshire West and Chester Council provides care for P, who has cerebral palsy and Down’s Syndrome and requires 24-hour care.
When his mother’s health deteriorated, the local authority obtained court orders that it was in P’s best interests to live in accommodation it arranged.
P now lives in a staffed bungalow with other residents. He has 98 hours one to one support for activities and trips. Intervention is sometimes required when he exhibits challenging behaviour, such as ripping up his continence pads and putting the pieces in his mouth.
A High Court judge ruled that the arrangements deprived him of his liberty, but that it was in his best interests for them to continue. But the Court of Appeal overturned this ruling.
In P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and another; P and Q (by their litigation friend, the Official Solicitor) v Surrey County Council  UKSC 19 the Supreme Court yesterday unanimously allowed the appeal in this case.
In the main judgment Lady Hale said that what it meant to be deprived of liberty “must be the same for everyone, whether or not they have physical or mental disabilities”.
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She added: “If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person.
“The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.”
Under the Mental Capacity Act a deprivation of liberty must be authorised by the Court of Protection or by the deprivation of liberty safeguards, and subject to regular independent checks.
Mark Palethorpe, Cheshire West and Chester’s Corporate Director of Strategic Commissioning, said: “We are relieved that the outcome of the ruling finally 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.”
He added: “Indeed, the judgements in all three court cases have noted the very great efforts by the authority and care staff to ensure that P’s life was as normal as possible and that the level of care and support needed to ensure this are necessary and in his best interest.”
Palethorpe said it was important to recognise that at all stages Cheshire West and Chester had acted lawfully and in the best interests of P.
But he warned that consequences of the Supreme Court’s judgment for health and social care nationally – both financially and in terms of care processes – were “huge”.
He said: “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.”
Palethorpe said Cheshire West and Chester would “as a matter of urgency” be working with all its 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”.
He said: “It could, therefore, have significant cost and procedural implications for local authorities across the country.”
The Supreme Court also ruled – by a majority of four to three – that there had been deprivations of liberty in another case heard at the same time as the Cheshire West case.
The P & Q case involved two sisters with learning disabilities, one of whom lived with a foster mother and the other in a secure residential home. In this case, which involved Surrey County Council, the Supreme Court overturned judgments in the High Court and the Court of Appeal that there had been no deprivations of liberty.