A recent judgement by P v Cheshire West and Chester Council and P&Q v Surrey County Council changed the landscape in the way deprivation of liberty can be viewed for people that lack capacity. It was previously believed that residents that did not object to being confined or under continuous monitoring were not being deprived of their liberty as constructed under article 5 of the human rights act.
The facts: P (otherwise known as MIG) and Q (otherwise known as MEG) v Surrey County Council
MIG and MEG are sisters who first became the subject of care proceedings under the Children Act 1989 in 2007, when they were aged respectively 16 and 15. MIG has a learning disability at the lower end of the moderate range or the upper end of the severe range. Until 2007 they lived with their mother and from 1997 also with their step-father. They were ill-treated and neglected there.
MIG was moved to foster mother who was devoted to her she was very well supported. MIG never attempted to leave her door was never locked and she required no medication. However, if she had attempted to leave her foster mother would restrain her.
MEG was moved from foster mother who was unable to control her aggressive outburst. She was placed in 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.
The Supreme Court majority judgement of four to three held that these arrangements in P & Q amounted to deprivations of liberty.
The west Cheshire case involved P, an adult with cerebral palsy and Down’s syndrome. P required a great of care on a 24 hour basis. P was 38 at the time of the Court of Protection hearing. He had lived with his mother up to the age of 37. His mother health had deteriorated and she was no longer able cope with her sons needs. He was moved into a bungalow -Z House with 2 other residents and lived close to his mother. He also required prompting and help with all the activities of daily living, getting about, eating, personal hygiene and continence. He wore continence pads. Because of his history of pulling at these and putting pieces in his mouth, he wore a “body suit” of all-in-one underwear which prevented him getting at the pads. Intervention was also needed to cope with other challenging behaviours which he could exhibit. But he was not on any tranquillising medication.
By the time of the final hearing before Baker J in April 2011, the principal issue was whether these arrangements amounted to a deprivation of liberty. Baker J held that P was completely under the control of the staff at Z House, that he could not “go anywhere, or do anything, without their support and assistance” Further, “the steps required to deal with his challenging behaviour lead to a clear conclusion that, looked at overall, P is being deprived of his liberty” .Nevertheless it was in his best interests for those arrangements to continue.
The Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty: The appeal was allowed in this case.
Lady Hale stated in judgement
“In my view, it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings, and is confirmed in the United Nations Convention on the Rights of Persons with Disabilities. Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities.”
The Department of health has given advice to local and care providers that they should “take steps to review existing care and treatment plans for individuals lacking capacity to determine if there is a deprivation of liberty” in the light of the ruling.
Where people are deprived of their liberty – and this is judged to be in their best interests – this must be authorised, said the DH.
It therefore essential that care home and hospital providers ensure that they re-examine all their residents and where necessary make application for appropriate authorisation.
In a related matter CQC have been criticised by the house lords scrutiny committee examining the mental capacity act and deprivation of liberty safeguards.
The report makes a number of recommendations, however in regard to the role of CQC the report states
It is clear that the CQC has not used its existing powers to best effect to ensure that the requirements of the Mental Capacity Act are met in practice.
We welcome the recognition by the CQC that a new focus on the Act is required in the way it regulates and inspects services. We recommend that the standards against which the CQC inspects should explicitly incorporate compliance with the Mental Capacity Act, as a core requirement that must be met by all health and care providers. Meeting the requirements of the empowering ethos of the Act, and especially in terms of actively enabling supported decision-making, must be given equal status with the appropriate use of the deprivation of liberty safeguards, or their replacement provisions.
The recommendation make clear that all future inspections by CQC will have a large element devoted to ensuring that hospitals and care home are meeting their obligations in regards to Provisions of the mental capacity act and deprivation of liberty safeguard regulations.
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