The Department of Health has written to health and social care organisations setting out the actions they should consider taking following a landmark Supreme Court ruling earlier this month on deprivations of liberty.
The letter from the Social Care Quality & Safety Team, which can be downloaded from the 39 Essex Street site here, covers the revised test for deprivation of liberty introduced by the court in P v Cheshire West and Chester Council and another and P and Q v Surrey County Council  UKSC 19.
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The DH letter said: “The Supreme Court has clarified that there is a deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights in the following circumstances: The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements.
“The Supreme Court 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 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. However, young persons aged 16 or 17 should be compared to persons of a similar age and maturity without disabilities.”
The letter also pointed out that the Supreme Court had held that a deprivation of liberty can occur in domestic settings where the State is responsible for imposing such arrangements.
“This will include a placement in a supported living arrangement in the community,” it said. “Hence, where there is, or is likely to be, a deprivation of liberty in such placements that must be authorised by the Court of Protection.”
The letter went on to set out the suggested actions that relevant staff and local authorities should take. This included taking steps to review existing care and treatment plans for individuals lacking capacity to determine if there is a deprivation of liberty (following the revised test supplied by the Supreme Court).
The DH letter It also provided information on the process of authorising a deprivation of liberty.
The Department of Health said Mental Capacity Act and Deprivation of Liberty Safeguards leads should ensure that the letter was cascaded to all relevant staff.
In the aftermath of the Supreme Court ruling, one of the local authorities involved – Cheshire West and Chester – welcomed the clarity provided by the court but warned that the consequences were “huge”, both financially and in terms of care processes.
See also: Deprivations of Liberty: the key to the ‘gilded cage’ from 39 Essex Street – available now on Local Government Law TV.