Supreme Court ruling on DoLS will have major impact on care providers

The judgment in the conjoined cases of (1) P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and (2) P and Q (by their litigation friend, the Official Solicitor) v Surrey County Council [19 March 2014] will force all care providers to review their safeguarding policies and procedures to make sure they are appropriately looking after adults in their care.

Under the Mental Capacity Act 2005, ("the MCA"), a deprivation of liberty must be authorised by the Court of Protection or by the deprivation of liberty safeguards (DoLS) and subject to regular independent checks.

1. In the Cheshire West case P was an adult born with cerebral palsy and Down’s syndrome who required 24-hour care. Until he was 37 he lived with his mother but when her health deteriorated the local social services authority obtained court orders that it was in P’s best interests to live in accommodation arranged by the authority.

In November 2009 he began living at Z House, a staffed bungalow with other residents near his home. He had one to one support to enable him to leave the house frequently for activities and visits for example to town or to see his mother.

Intervention was sometimes required when he exhibited challenging behaviour, such as shredding his continence pads and putting them in his mouth.

Mr Justice Baker held that these arrangements did deprive him of his liberty but that it was in P’s best interests for them to continue. The Court of Appeal overturned this ruling, substituting a declaration that the arrangements did not involve a deprivation of liberty. The Supreme Court has unanimously held that these arrangements amounted to deprivation of liberty.

2. The P and Q case involved two sisters (also known as MIG and MEG) with learning disabilities. They lived with their mother until 2007 when they were respectively 16 and 15.

MIG lived with a foster mother and went to a further education unit daily. She had her own bedroom, the door of which was never locked. She never attempted to leave the foster home by herself but would have been restrained from doing so had she tried.

MEG was moved from foster care to a secure residential home for learning disabled adolescents with complex needs. She sometimes required physical restraint and received tranquillising medication for the purpose of controlling her anxiety. She attended college and went on outings.

When the care proceedings were transferred to the Court of Protection in 2009, the judge held that these living arrangements were in the sisters’ best interests and did not amount to a deprivation of liberty. This finding was upheld by the Court of Appeal. The Supreme Court, by a majority of 4 to 3, has held that these arrangements amounted to deprivations of liberty.

In the leading judgment Lady Hale said it was axiomatic that people with disabilities, both mental and physical, had the same human rights as the rest of the human race. The judge continued:

“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.”

Lady Hale agreed with submissions made by the National Autistic Society and Mind that the individual’s compliance or lack of objection was not relevant, and the reason or purpose behind a particular placement was also not relevant.