Cheshire West: The hidden cost

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, and
• 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 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 apply (“DOLS). 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.

The financial implications of implementing the judgment and putting in place the necessary safeguards to protect a greater number of vulnerable adults are clearly significant.  Under the DOLS procedure, these costs include the fees payable to Mental Health Assessors and Best Interests Assessors, in addition to Court fees, and increased workforce expenditure.

There is a further potential but hidden cost, which is largely beyond the day to day control of the local authority, but which may have a substantial bite. This concerns any resident placed by their local authority in a private care home, under the National Assistance Act 1948.

If the private care home fails to respond effectively to the Cheshire West judgment, by not identifying a deprivation of liberty in the first place or by not notifying the local authority immediately one arises, then the resident may be unlawfully deprived of their liberty, contrary to Article 5 ECHR, and entitled to compensation. If a claim for compensation is to be pursued, then it must be pursued against the local authority.

Although damages awards for reported unlawful detention claims can be relatively modest (£35,000 was awarded in LB of Hillingdon v Neary [2011] EWHC 3522 (COP)), the impact in terms of adverse publicity, loss of morale and higher demands on the workforce and court costs can be substantial.

Most regulated providers will be anxious to ensure their residents have the proper protection of the procedural safeguards. What will ensure all such providers treat this issue with the urgency it deserves? Clearly not the risk of litigation, and an action brought against them by or on behalf of one of their residents. More realistically, some will act in response to pressure from the contracting local authority or in response to Care Quality Commission requirements.

Every responsible local authority wishes to ensure that vulnerable individuals are not deprived of their liberty unlawfully, and to avoid finding itself on the wrong end of an unlawful deprivation of liberty claim:

Steps local authorities might consider in relation to commissioned services include:

• Advising each provider of the implications of the Cheshire West decision
• Requiring the provider to undertake an immediate review of their DOLS policy and procedures,
• Requiring evidence that key staff understand the safeguards and know when and how to apply for a Standard Authorisation and
• Requiring a review of the living arrangements of individual residents, to make sure that an application is made for a Standard Authorisation, where any deprivation of liberty is identified.
• Updating the providers as and when further guidance is issued, for example by the Department of Health

The local authority has no responsibility for self funders, who may find themselves deprived of their liberty. This includes self funders whose care is arranged for them by an attorney or Court of Protection deputy. Careful use of the Corporate deputy, or referrals to specialist Court of Protection solicitors may be a means of ensuring that arrangements made for individuals who lack capacity to make their own decisions, are not made by the local authority in the first place.

This piece also appeared in Local Government Lawyer on 16 April 2014. A copy of the article can also be found on their website.

For more information

Contact Sheree Green on sheree.green@anthonycollins.com or 0121 212 7495.