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Neil Cook
Neil Cook
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Date Published: 15 Jul 2014
Last Updated: 12 Mar 2020

Deprivation of Liberty Safeguards - recent case creates minefield for care home owners

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The Mental Capacity Act 2005 allows restrictions and restraint to be used, but only if they are in the best interests of a person who lacks capacity to make the decision themselves. Forms of restriction and restraint can include using locks on doors, medication to calm a person, close supervision etc. However, such restrictions or restraint can take away a person’s freedom and deprive them of their liberty. To protect such persons the Deprivation of Liberty Safeguards were introduced in April 2009. These safeguards place the onus on care homes or hospitals to obtain authorisation before they can deprive a person of their liberty. Six assessments have to take place before a standard authorisation can be given.

Previous case law had ruled that physical intervention to manage behaviour, where the person did not have the capacity to make decisions about their care, was not a deprivation of liberty. However, in the recent case of P v Cheshire West and Chester Council, the Supreme Court ruled that a person’s compliance or lack of objection to their placement, the purpose of it or the extent to which it enables them to live a relatively normal life, for someone with their level of disability, were all irrelevant as to whether they were deprived of their liberty. The facts of the case were that P was born with Cerebral Palsy and Down’s Syndrome and lacked capacity to make decisions about his care and accommodation and had a history of challenging and uncooperative behaviour. He was incontinent and had developed a habit of tearing his continence pads to pieces and eating them. To prevent him from accessing the pads his carers used an all in one body suit that zipped at the back. He was also unable to leave the home without being accompanied by a member of staff. The Court of Appeal had ruled in 2011 that his care was not a deprivation of liberty and that P’s life was as normal as possible for someone with his level of disability. However, the Supreme Court rejected this unanimously, saying that disabled people should not face a tougher standard for being deprived of their liberty than non-disabled people. Baroness Hale stated that “a gilded cage is still a cage”.

The effect of this judgment is that there must be many thousands of people who are being deprived of their liberty and many more who have been assessed as not being deprived of their liberty who need to be reassessed as a matter of urgency.

Care home owners should review the care plans of all residents who lack capacity to make decisions about their care and, if in any doubt, should apply for a reassessment under the Deprivation of Liberty Safeguards.

If you require any information about the contents of this blog or Deprivation of Liberty Safeguards, please contact me on 01202 525333 or neil.cook@ellisjones.co.uk.

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Neil Cook
Neil Cook
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