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Deprivation of Liberty update – for children, in the family home but not in Intensive Care

6 November 2015
Three of the thorniest issues in deprivation of liberty cases have been dealt with in three separate important judgments in the last few weeks, including for the first time a Court decision on DoL in Intensive Care

Children in care and parental consent

There has been case law recently holding that it can be within the scope of parental responsibility to consent to what would otherwise have been a deprivation of liberty for a 15 year old child (Trust A v X and A Local Authority, 31 March 2015).

The same judge, Mr Justice Keehan, has now tackled the same question for a 14 year old who is in a children’s home under an Interim Care Order with a care package which was very easy to say met the Cheshire West “acid test” of continuous supervision and control and being not free to leave.

In A Local Authority v D, 28 July 2015, Keehan J repeated that the Cheshire West test applies equally to children and young people and that it is not appropriate to rely on parental consent to negate what would otherwise have been a DoL where, by definition the exercise of parental responsibility is in doubt by virtue of the Interim care Order. In such a case, it is not enough for the local authority to simply consent to the care package either – it demands independent scrutiny and authorisation, and the only mechanism available, under 16 years, is the Inherent Jurisdiction of the High Court.

Deprivation in the family home

With the definition of deprivation of liberty seemingly settled by the Supreme Court in Cheshire West in March 2014, the battle has moved on to how this test should be applied in practice in different settings. For various reasons, some felt that surely it couldn’t, or shouldn’t, be literally transposed from the long term supported living setting on the facts of that case into such extremes as the family home or acute medical treatment in hospital. In the last few weeks we have had a case at each end of the spectrum.

Starting in the community, the background to KW v Rochdale MBC is fairly well known - KW is a 52 year old lady who, as a result of a brain injury, lacks capacity in respect of care and residence. She lives at home with 24 hour a day support, because without this she will wander and put herself at risk, tragically, looking for her children who have grown and left but, as a result of her brain injury, she still thinks are infants and lost. An application had been made to the Court of Protection by the local authority to authorise the care package as, everyone agreed, it is a deprivation of liberty per Cheshire West . 

 
In November 2014 Mostyn J disagreed. He purported to apply the Cheshire West test, while making it clear that he disagreed with it, and said that KW did not meet the “not free to leave” part of the acid test at least partly because she was physically unable to leave (referring to her declining mobility, though even then she was still able to walk). Any deprivation of liberty therefore “evaporated” according to the Judge. Despite the judge explaining his thinking further in another unrelated case (TB v Tower Hamlets LBC, 17 December 2014) this seemed difficult to square with the Supreme Court judgment in Cheshire West. 

 
The Court of Appeal, without a hearing, approved a consent order from the parties to the effect that Mostyn J was wrong, and it was a DoL which required regular review. But Mostyn then gave another judgment in which he disagreed with the Court of Appeal, and insisted that, if he was wrong, then a detailed appeal judgment must be given to explain why. 

 
Perhaps predictably, the Court of Appeal (judgment 20 October 2015) was not impressed and gave a very critical judgment, saying Mostyn J’s analysis of the merits of Cheshire West “was, and could be, of no legal effect. It was irrelevant”, as the Supreme Court had settled the matter, and that legal costs and court time had been wasted as a result of Mostyn J’s “tenacious adherence to his jurisprudential analysis leading to his conclusion that Cheshire West was wrongly decided”. The Court of Appeal held that KW is deprived of liberty, and that the regular reviews required should be conducted by a different judge. 

 
At face value, this is a loud and clear message from the Court of Appeal that there is no comfort to be sought for public bodes who may want to argue that there is no deprivation of liberty in a family home or other community setting, based on first instance judgments like those of Mostyn J, and those cases should be progressed using the Re X scheme to get ongoing unlawful deprivations of liberty authorised as soon as possible. 

Mostyn J’s assertion that “the law is now in a state of serious confusion” drew the riposte from the Court of Appeal that “even if Cheshire West is wrong, there is nothing confusing about it”.

Deprivation in Intensive Care

Conversely, just a couple of weeks later we had the first judgment on deprivation of liberty in Intensive Care, which explicitly rejects the “mechanistic” application of the Cheshire West test in that setting.

LF v HM Coroner for Inner South London (29 October 2015) was a judicial review against a coroner’s decision not to hold a jury inquest into the death in December 2013 of a 45 year old woman, Maria, with Down’s Syndrome, after 3 weeks in hospital with pneumonia, the last week of which was in Intensive Care. 

 
Lord Justice Gross and Mr Justice Charles both held that the coroner was right that she was not “in state detention” for the purposes of the Coroners and Justice Act 2009 (CJA), and was not deprived of her liberty, despite the apparent fulfilment of the Cheshire West test (she was plainly “under continuous supervision and control and not free to leave”). 

 
LJ Gross focussed on the context of the Cheshire West judgment – ie the scrutiny of long term living arrangements – and said that this should not be “mechanistically” applied in the case of acute medical treatment in a case like this where there is no “serious debate” about the proper treatment, and no “active resistance from the family to the particular course of treatment”. The intention here, he said, was discharge her “once safe to do so”, and it was nonsense, both judges said, to hypothesise (as the Law Society guidance suggests) about what would have happened if someone had tried to remove her when this was simply not a sensible reality.

 
Charles J focussed more on the CJA definition of “state detention”, which requires “compulsory detention”, and held that it was not applicable in this case, where detention (if that is what this is) is in best interests, rather than over-riding a person’s informed freedom of choice. He echoed the lack of dispute about her treatment needs, that treatment was based on her best interests, and added that the physical disorder affected her treatment needs (and the restrictions on her that this imposed) in exactly the same way as for someone without her mental disorder. He looked at the “mischief” addressed by the Cheshire West Supreme Court judgment, and says it doesn’t support the Cheshire West test being applied “without modification to the different situation of a patient who is in hospital for care and treatment of physical disorders”. He argued there is little need for additional safeguards if a “devoted family member is actively involved and motivated by the best interests of the patient”  already. 

 
Both judges said, in virtually identical terms, that she was “Maria remained in the ICU not because she had been detained or deprived of liberty but because for pressing medical reasons and treatment she was unable to be elsewhere”.


Conclusion

The LF judgment is likely to be very welcome – both as regards the need for authorisation under DOLS or a COP order and the coronial impact - to care providers anxious about the application of Cheshire West in Intensive Care, and perhaps by extension in a hospice or in an acute medical setting more generally. 

 
This is very unlikely to be the final word, however. The 2 judges give slightly different (and to some extent contradictory) reasons, and some of the decision – e.g. the relevance of it being treatment of her physical health rather than mental disorder – arguably raises more questions than answers. Some of the reasoning – e.g. about the consensus on the proposed treatment, being in P’s best interests and the family being involved and content – looks to have more in common with the reasoning with the Court of Appeal judgment in Cheshire West than the Supreme Court. Leave to appeal has been sought, but at the time of writing we do not know whether this will be going to the Court of Appeal, or when.

Set alongside the forceful assertion in the Court of Appeal in the Rochdale case that even if Cheshire West is wrong, it is not confusing, this seems to put a little more mud back in the water, at least as regards acute medical treatment cases, contradicting some earlier first instance judgments applying the Cheshire West test to medical treatment (e.g. Re FG, the obstetric case judgment by Keehan J, as it happens, in August 2014). As the case law continues to test the application of Cheshire West, it appears that there may be a distinction emerging as between cases of decisions about “medical treatment” and those about “living arrangements” but even if that is right, in many cases that may remain a very contentious distinction to draw in practice.

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Mental Health and Court of Protection Legal Update webinar MS Teams

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Remote Mock Inquest Training sessions On24 webinar

A training course for practising clinicians and any NHS professionals who would benefit from understanding the inquest process.

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