A Supreme Court decision last week has radically changed the way that we must treat our most vulnerable citizens.

In society some people need restrictions placed on them to keep them safe. For instance, it probably seems right that a frail elderly lady with advanced dementia, who is no longer able to make basic decisions such as “am I hungry?” or “am I cold?” should be moved to a care home where she can be looked after and kept safe.

However, when do these restrictions amount to a deprivation of liberty? Most people would be extremely unhappy if they were forced from their home into a care home where they were always under the watchful eye of care home staff. So, at what point, and in what circumstances, is it right to place restrictions on an individual’s liberty?

The Court of Protection, which was established in 2007, is frequently asked to consider this issue. If someone is found to be deprived of their liberty then their circumstances must, by law, be kept under review to ensure that restrictions are kept to the minimum and are in the person’s best interests.

Last week the Supreme Court handed down a hugely important judgement which clarified the position as to what amounts to a deprivation of liberty. The case was P v Cheshire West and Chester Council [2014] UKSC 19.

Baroness Hale outlined the key factors which indicate a person is being deprived of their liberty. They are:

1. The person concerned was under continuous supervision and control; and
2. They are not free to leave the placement.

In terms of leaving the placement this is in relation to moving to somewhere else to live, rather than just leaving for a day trip!

Factors which were previously, and should no longer be taken into account are:

1. The person’s compliance or lack of objection
2. The relative normality of the placement
3. The reason or purpose behind a particular placement.

Although these reasons may be relevant when justifying the deprivation.

Rebecca Chapman, a solicitor specialising in Court of Protection, from Ridley and Hall Solicitors said:

“This decision is groundbreaking in its recognition of the importance of respecting the human rights of vulnerable people. The concept of liberty applies equally to all people and can no longer be applied on a ‘sliding scale’.”

She went on to add;

“Prior to the Supreme Court judgement the ‘liberty’ of a person was assessed on the ‘relative normality’ of the situation. So people who were mentally disabled and required a lot of restrictions to keep them safe, would be deemed to still have their liberty. This is because this was normal for them, relative to their situation.

This decision places everyone on a level playing field; we should all expect the same level of freedom. But some people should still have their freedom limited to keep them safe. In these situations the judgement now means that the restrictions must be kept under review to ensure they are as minimal as possible and remain in the person’s best interests.”

Rebecca’s conclusion is that;

“This will mean that a huge number of people, not previously thought to be deprived of their liberty, in fact are now so deprived in the eyes of the law.”

To contact Rebecca Chapman, please call 01484 538421.