An important deprivation of liberty safeguards judgement was published today, under which the Court of Appeal overturned an earlier Court of Protection ruling that a man with severe learning and physical disabilities, P, was deprived of his liberty in a residential setting. The appeal was brought by the local authority involved, Cheshire West and Chester Council. In this guest blog, Mental Health Alliance Dols lead Roger Hargreaves appeal explains the significance of the judgement.
The original judgement found that P was deprived of his liberty because, in addition to being under the total control of the staff in his supported living placement, he required, from time to time, restraint to prevent him from harming himself or sometimes others.
However the appeal judges, led by Lord Justice Munby who is generally regarded as the leading authority on this issue, concluded that these interventions were not sufficient to tip the balance from restriction to deprivation of liberty, given that P's life was as normal as was possible for someone with his type and degree of disability (and in particular that he had regular access to the outside world); that the placement was supported by his family who had regular contact with him; and that he was not attempting to leave. They stressed that the periods of restraint were only brief and not "pervasive"; were for the purpose of preventing harm; were the minimum necessary to ensure his health and safety; and would be required wherever he was living including his family home.
Although the outcome of this appeal effectively returns the law to where it was before the original decision, Munby's explanation of the reasons is very valuable, as it sets out the case law more clearly and explicitly than before. In particular, it stresses that a judgement as to whether or not there is a deprivation of liberty has to be made by comparing the life the person is leading with what would be normal for someone with similar disabilities, as opposed to normal for the population as a whole.
It will no doubt come as a relief in particular to supported-living providers, who if the original judgement had been allowed to stand would have been faced with the possibility that the care arrangements of perhaps thousands of service users with challenging behaviours would have needed authorisation by the Court of Protection.
It should, however, be stressed that "pervasive" i.e frequent and severe restraint might still tip the balance into deprivation, as might objection from family or resistance by the person themselves. Munby also made it clear that whilst the objective purpose of the restraint, for example, whether it is for the purpose of health and safety or as a punishment, is relevant to the question of whether it is, or is not deprivation, the subjective motivation, for example that it is being done in the person's best interests, is not, and this will hopefully help to correct a very common misunderstanding.
The original judgement found that P was deprived of his liberty because, in addition to being under the total control of the staff in his supported living placement, he required, from time to time, restraint to prevent him from harming himself or sometimes others.
However the appeal judges, led by Lord Justice Munby who is generally regarded as the leading authority on this issue, concluded that these interventions were not sufficient to tip the balance from restriction to deprivation of liberty, given that P's life was as normal as was possible for someone with his type and degree of disability (and in particular that he had regular access to the outside world); that the placement was supported by his family who had regular contact with him; and that he was not attempting to leave. They stressed that the periods of restraint were only brief and not "pervasive"; were for the purpose of preventing harm; were the minimum necessary to ensure his health and safety; and would be required wherever he was living including his family home.
Although the outcome of this appeal effectively returns the law to where it was before the original decision, Munby's explanation of the reasons is very valuable, as it sets out the case law more clearly and explicitly than before. In particular, it stresses that a judgement as to whether or not there is a deprivation of liberty has to be made by comparing the life the person is leading with what would be normal for someone with similar disabilities, as opposed to normal for the population as a whole.
It will no doubt come as a relief in particular to supported-living providers, who if the original judgement had been allowed to stand would have been faced with the possibility that the care arrangements of perhaps thousands of service users with challenging behaviours would have needed authorisation by the Court of Protection.
It should, however, be stressed that "pervasive" i.e frequent and severe restraint might still tip the balance into deprivation, as might objection from family or resistance by the person themselves. Munby also made it clear that whilst the objective purpose of the restraint, for example, whether it is for the purpose of health and safety or as a punishment, is relevant to the question of whether it is, or is not deprivation, the subjective motivation, for example that it is being done in the person's best interests, is not, and this will hopefully help to correct a very common misunderstanding.
