The decision in Cheshire West significantly changed the law in relation to the Deprivation of Liberty Safeguards. Whilst the outcome of Cheshire West and the new  test to be applied is clear, there remain a number of questions regarding how in practice the decision of the Supreme Court should be interpreted. Recent guidance from the Law Society seeks to tackle some of the key questions raised by the new law and also sets out practical guidance for interpreting the law in a range of care settings.

The guidance is detailed and sets out a helpful and comprehensive summary of  the law and key issues for consideration in assessing whether an individual is   being deprived of their liberty. I set out below a brief summary of some of the most helpful sections of the guidance relating to the provision of care in the acute sector.

The acid test

Cheshire West set out the “Acid Test” for determining when an individual could be deprived of their liberty. The Court held that the test requires a consideration of whether the individual is free to leave, and whether the individual is under complete and continuous supervision.

The guidance suggests that in assessing whether any individual is under continuous supervision and control, organisations should consider whether the care plan in place effectively requires carers to always need to know where the individual is and what they are doing at any one time. The guidance suggests that if the answer to both these questions is yes then this will be a “strong pointer” that the individual is under continuous supervision and control.

The guidance also suggests that this test does not apply to every single decision being taken for a specific individual but seeks to assess the “overall structure in which aspects of decision making are being allowed”.

Freedom to leave?

The guidance confirms that there is difference between the freedom to leave with an ability to leave. The guidance suggests that in the context of DOLS the focus should be upon the actions of those around the individual rather than the individual themselves, and the question should be asked as to what would happen in the event that the individual expressed a desire to leave?

The guidance sets out the following “broad propositions” in relation to whether an individual is free to leave:

  • If a person is not free to come and go as they wish this is “at a minimum, a pointer to the individual being subject to restrictions on their liberty”
  • A person will clearly not be free to leave if they have to seek permission to relocate from the place of treatment.
  • Organisations should consider what would happen if  a person were to leave and not return when expected? Would steps be taken to locate and bring them back to the organisation?

Non-negligible period of time

It is clear from European case law that in order to engage Article 5 of the ECHR, an individual’s liberty must be restricted for a non-negligible period of time. The guidance confirms that, understandably, this will very much depend on the particular circumstances of the case including the nature of the restriction and consequences.

The guidance acknowledges that there have been cases where individuals have been intensely restrained for as little as 40 minutes and it was held to be a deprivation of liberty.

The guidance avoids setting down a specific period of time that can be considered “safe”. The guidance does however strongly suggest that it is not appropriate to use a rule of thumb (that some public bodies have adopted) that a deprivation of liberty is unlikely to arise where a person is confined for less than 7 days.

Conveyance by ambulance

Helpfully, in relation to deprivation of liberty in the hospital setting, the guidance confirms that in almost all cases it is likely that a person can be lawfully taken to a hospital or a care home by ambulance without it being a deprivation of liberty. The guidance confirms however there will be circumstances in which it could be a deprivation of liberty including where an individual has to be sedated or the journey is exceptionally long.

Accident & emergency

The guidance acknowledges that whilst individuals often only stay within A&E for a short period of time, there are circumstances in which a deprivation of liberty could occur. The guidance also acknowledges that there may be circumstances in which due to the timescales, there may be a deprivation of liberty but nothing can be done about it by way of obtaining authorisation within a sufficiently short period of time.

Acute ward setting

The guidance identifies potentially liberty restricting  measures that could indicate that a DOL is taking place on an acute ward. These are not determinative but the use of these measures demonstrates a level of control over the patient:

  • Physical restraint
  • Locked wards
  • Mittens
  • Bedrails
  • Frequency and intensity of observation and monitoring levels
  • Requirement for a patient to remain in a certain area of the ward

Summary

The guidance from the Law Society is very helpful in combating some of the practical questions that have been raised to date with interpreting the law. The guidance acknowledges that further judicial consideration will need to be given before we are much clearer in terms of how the acid test should be applied, but this guidance certainly is welcomed on the basis that it provides some helpful and practical guidance on how to approach the DOLS in light of Cheshire West.

The guidance is available in full here: http://www. lawsociety.org.uk/support-services/advice/articles/ deprivation-of-liberty/