Cheshire West: the hidden cost

By Sheree Green

Last month, the Supreme Court clarified that a ‘deprivation of liberty’ (for the purposes of article 5 of the European Convention on Human Rights [ECHR]) occurs where a person: is under continuous supervision and control; they are not ‘free to leave’; and they lack the mental capacity to consent to the arrangements.

Care homes and other provider organisations may struggle to understand the implications of this judgment. They are advised that, if in doubt, they should err on the side of caution in considering whether their resident or service user may be being deprived of their liberty and make an application to the appropriate local authority for authorisation of that deprivation of liberty. The likely result may be the bombardment of local authorities with such requests, particularly from the more ‘conscientious’ providers.

The Supreme Court judgment applies across the spectrum of care delivery and includes domestic settings, if the arrangements are made by the state, although the procedural safeguards differ. For residents or patients who may be deprived of their liberty in care homes or hospitals, the Deprivation of Liberty Safeguards (DOLS) apply. For those deprived of their liberty in other settings, such as supported living, shared lives schemes or extra care, the local authority must make an application to the Court of Protection for specific authorisation…

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