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On the 24th March 2014, there was a judgment of the Supreme Court that will almost certainly lead to much 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?
And, 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.
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 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:
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 a 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.
Finally, the Alzheimer’s Society has estimated that there are around 200,000 clients with dementia in care homes in England and Wales. Subject to what 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 the vast majority of dementia clients in care homes will be judged to be deprived of their liberty.
This has huge implications for care home providers looking after such clients. Many more urgent authorisations will need to be made by care home providers, backed up with applications for standard authorisations to local authorities.
