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Published 14 August 2014
One of the main consequences of the Supreme Court's decision in the Cheshire West (P v Cheshire West and Chester Council and another; P and Q v Surrey County Council  UKSC 19) case is that, because of a widened definition of what constitutes a deprivation of liberty, it is now more likely that an incapacitated person will be seen to be deprived of their liberty in a supported living environment and in their own home.
Local authorities and CCGs who are managing the care of an incapacitated patient in the community have a legal duty to determine whether those care arrangements amount to a deprivation of liberty and seek appropriate authority. The recent case of Re X and others (Deprivation of Liberty)  EWCOP 25 sets out the processes that local authorities and CCG's must follow in seeking authorisation.
Those involved in commissioning and providing care in the community will need to consider whether care arrangements they have put in place for incapacitated persons in the community give rise to a deprivation of liberty. In carrying out such an assessment, the setting where the person’s care is being provided will be irrelevant as to whether a deprivation of liberty is taking place (i.e. whether it is in a care home, a hospital, supported living, or in the persons own home). This is a significant change following the Supreme Court decision, since previously the ‘relative normality’ of the person’s placement was a relevant consideration, meaning deprivation of liberty was less likely to occur in supported living environments and a person's own home. The change in definition now means it is more likely that a person will now be seen to be deprived of their liberty in such settings, where the care arrangements are being funded by the state. Authorisation for a deprivation of liberty in a supported living environment or a person's own home which falls outside the statutory framework of the Deprivation of Liberty Safeguards (DoLs) can only be authorised by the Court of Protection. An application to the Court of Protection where a DOL exists must bemade. Re X provides the framework for applications by funding bodies, i.e. local authorities and CCG's.
A failure to seek appropriate authorisation when a person is deprived of their liberty and their care is funded by the state is unlawful and will engage Article 5 ECHR, right to liberty. An unlawful deprivation of liberty may result in a claim under the Human Rights Act 1998 or criticism/enforcement by the regulator or others.
Commissioners of care will need to ensure the issue of DoL is considered as an integral part of care planning. Those providing care in supported living environments will play a wider role in identifying concerns and raising these as potential safeguarding, or care planning issues with care managers and others responsible for managing the persons care (for example, alerting commissioners to concerns regarding overly restrictive care plans).
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