Cheshire West deprivation of liberty judgment overturned by Supreme Court: webinar recording & analysis

Ben Troke: Right ladies and gentlemen, hello and welcome. I imagine we're still going to have people joining over the next few minutes but all they're going to miss is the preamble and the housekeeping which we're going to get through as quickly as we can so we can get on to our star guest speakers Arianna Kelly from 39 Essex Chambers and Claire Webster Now at DCC i Consultancy, though I've worked with Claire over many years in different roles at different organisations before this one at Sky Social Care Institute for Excellence. For those who don't know me, my name is Ben Troke. I'm a partner at Weightmans Solicitors in the Healthcare Advisory practice.
 
Welcome to this webinar: a new dawn for deprivation of liberty deliberately jaunty and upbeat title to give it. I'll be quick with this so we can get on to the substance of it. If you don't know us, Weightmans are a full service specialist health and care law firm. We act for hundreds of NHS providers and commissioners, hundreds of independent sector providers and hundreds of local authorities all over the country.
 
But we can tell you more about ourselves if you need it and if you'd like.
 
Next slide please. 
 
By my count there have been six or seven webinars on the Attorney General of Northern Ireland's Supreme Court decision redefining deprivation of liberty since it came out Tuesday last week. In fact I went to another one this morning myself.
 
And of course there have been plenty of articles, not least ours, which go through it in quite a lot of detail.
 
So I'm going to assume that you are an audience who are interested in these things and you probably know what the judgment said. So focus for today we're going to try and move on from not just what it says but what does it mean?
 
So what? Now what? Not just what it says. Okay so that's going to be the focus. Inevitably we'll have to tread lightly through what did it say?
 
But we're going try and move on to what does it mean and now what? Okay we are not here to debate if it is right or wrong. I've seen the judgment described as a victory for common sense and I've seen it described as the biggest rollback in disability rights in a generation.
 
The answer might be somewhere in between and honestly I don't know yet quite what I think. And it doesn't matter what I think if this is right or wrong. This is the way it is.
 
And so again we're going to try and focus practicality of now what? What do we do about it? Worries about it are relevant. I do not mean to minimise or dismiss that, but let's do it in the context of how we talk about mitigating those risks.
 
Clearly this is only the the start of the conversation. We are going to see case law, we're going to see guidance. In the last day or two we've seen CQC, ADAS, Senior Judge Hilda and others put out guidance. We'll try and pull all that together and put it on the follow-up email for ease of reference although if I get a minute I might drop some links into the chat or the Q and A while we are going. But clearly we are going to be talking about this for quite some time.
 
And I'm very conscious just as our client base is very mixed, the audience we've got for this session is very mixed. And I think the impact of acne is going to feel very different in different settings from acute medical treatment in hospitals, through residential care supported living and into the family home community setting.
 
As much as we can when we get to the discussion Q&A, we're going to touch on some of those different settings and the implications to help make it useful for different chunks of the audience. But we recognise it will land differently in different places. So we will be providing sector specific support and resources. Watch this space.
 
And lastly of course we are not here to talk about the particular circumstances of Bob and give you a bit of legal advice on whether he or is or isn't deprived of his liberty, but we're going to be talking in general terms. So I'll do this as quickly as I can the preamble, the background.
 
How do we get to where we are and what is this all about?
 
Whenever I'm asked to train on deprivation of liberty whether they want me to or not, I always talk about the Mental Capacity Act for at least the first half of any session because the Mental Capacity Act is the guts of this. That's what this is all about. It's about that balance between autonomy and paternalism enabling empowering people to make decisions for themselves as much as we can but doing right by them in their best interests that streak of paternalism when they can't. So we do get to make best interests decisions for people where they cannot decide for themselves.
 
But as a matter of proportionality, the more intrusive the impact of that best interests decision making, however well intentioned, the greater the need for independent scrutiny due process safeguards. So that's why Section five of the Mental Capacity Act allows you to do what you think is reasonably in someone's best interests if you reasonably think they lack capacity for that decision. But Section six needs more. If you're going to be restraining them you need more it's got to be necessary and proportionate to prevent harm.
 
And as we go down that continuum we get something the law regards as a deprivation of somebody's liberty however we define that. And at that point to comply with Article five of the European Convention there needs to be a due legal process and a right to challenge. Now in health and sexual care context usually that's Dole's, deprivation and liberty safeguards, care homes and hospitals over eighteen, or an application to court. So blindingly obvious from those basic principles is that the Mental Capacity Act decision making framework must come first.
 
That best interest decision making may bring restrictions, but the deprivation of liberty legal framework is extra scrutiny. It's the spotlight we bring to that best interest decision making to make sure it's okay as a matter of proportionality. So it's not Dole's that imposes restrictions. DOLS is the extra scrutiny.
 
It is a spotlight and not a padlock.
 
Secondly, we need to know what a DOL is to trigger this process.
 
Now we know from the case law there's three elements: objective confinement subjective no valid consent and until the Supreme Court tells us otherwise imputable to the State which seems to always be easy to satisfy in this context.
 
Of practice we started out with for deprivation of liberty safeguards opens. There is paragraph two point one I remember it there is no simple definition of a deprivation of liberty. Well thank you ever so much.
 
And we had to muddle through with lots of case law about competing issues and factors, until we got a Supreme Court decision in twenty fourteen, Cheshire West, the acid test for confinement is continuous supervision control and not free to leave. And at the time absolutely taken for granted there is no consent, no valid consent, that would stop it being a deprivation of liberty, because we're dealing with someone who lacks capacity to make those decisions for themselves. Now like any definition, you trade clarity for breadth.
 
Okay so in getting a nice clear line, maybe we cast the net too wide. Okay it may be caught too many people. Certainly lots of people thought that the net was too wide but at least it was nice and clear.
 
Or so we thought.
 
All of that, it turns out, was wrong. Cheshire West was wrong. And I'm going to hand over to Arianna to take us forward from Tuesday last week.
 
Next slide please, Kieran.
 
Arianna Kelly: Thank you so much. So again, I think as Ben said, we're assuming that most of you are aware of the top level headlines. I'm just going to touch on those quite briefly. And then what I'm going to try to focus practical help as we can offer from the judgment about who is and who isn't deprived of their liberty.
 
Because going back to the multifactorial test is a giant leap. And in terms of the Strasbourg case law, it's not always clear. It's not always consistent. So what we're trying to do is ground it in as many examples as we can give you to try to give some markers, I suppose, in terms of finding out who is and isn't old.
 
Next slide, please.
 
So the top level headlines were that the Cheshire West acid test is set aside.
 
And there were changes to both the subjective test and the objective test. So for the subjective test, which meant that a person isn't deprived of their liberty if they consent to the arrangements for their care, the Supreme Court found that people who lack capacity to decide on the residents and care arrangements may consent to them for the purposes of Article five of the European Convention, meaning that they're not deprived of their liberty. So it's not just the application of the Mental Capacity Act test to decide whether or not a person has given subjective and valid consent for the purposes of article five, which would then bring them outside of the scope of article five.
 
The Mental Capacity Act still remains in place, and a person can't give consent from a domestic perspective to their care arrangements. And those decisions would still need to be taken for them under the Mental Capacity Act, but it wouldn't put them within Article five safeguards. So it would just put them into the same kind of decision making that's made for other decisions under the Mental Capacity Act, which don't require court involvement or the use of standard authorisation.
 
For the the decision also is not considering the implementation of law in England or Wales, and the definition of a deprivation of liberty is linked within the Mental Capacity Act to the Strasbourg definition of a deprivation of liberty. The Agni judgment now stands as the definitive test in domestic case law for what a deprivation of liberty is, and so this does have immediate effect. People there there's there's no need for parliament to take any action. There's no need for DHFC to do anything. This is now already in effect. Next slide, please.
 
So in looking at what the test for deprivations of liberty is, the supreme court adopted what's called the Guzzardi test. This is something that has been in Strasbourg case law since nineteen eighty one and has remained a sort of lodestone of a lot of Strasbourg case law for looking at when a deprivation of liberty exists.
 
The reason that I set out the Guzzardi test is just to say when we're looking at some of the other examples, Guzzardi itself is not necessarily going to be a test that can guide people to looking at when people in social care settings are or aren't deprived to their liberty.
 
One of the things that was looked at by the Supreme Court in this case was really the breadth of deprivation of liberty case law. So people who are in police detention, people who are being subject to penal restrictions, people who are detained in immigration settings, and really a broad range of people.
 
The Guzzardi test itself was looking at a mafiosi who was confined to a small island that had a criminal detention centre on it and had relatively limited access to other people besides those who were going in and out of the detention centre.
 
But what the overall finding in Ghazardi was was that there was a multifactorial test and that it there's not necessarily a clear on and off switch for when a person is or isn't deprived of their liberty. You look at the concrete situation, You look at all of the restrictions on the individual, including their type, duration, effects, and manner of the restrictions on the person. One of the reasons the Guadhari test was interesting was because this man, like many others, was not actually in a prison. He was free to move around the island.
 
He could talk to people that he could find on the island. But what he couldn't do was leave the island, and he had very limited social contacts, on on the island itself. So even though this was somebody who was not in a prison cell, the Strasbourg court still found that he was deprived of this liberty because if you look at the overall circumstances in his life, it was beyond mere restrictions on of liberty and into a deprivation of liberty. Next slide, please.
 
So the supreme court set out what the objective test is, with reference to the Guzzardi test and other Strasbourg case law. And for good or for bad, there are a lot of factors in the objective test. And I think what this goes to is the point in Guzzardi that there's no one single factor, and there's no one decisive factor in terms of the rejection of the acid test of saying, was it just continuous supervision and control and not free to leave? What the supreme court said is that's part of it, but that's not the totality of it.
 
And you've actually to look at everything about the person's circumstances. So part of the things that were specifically identified in the judgment were the degree of supervision and control over the person's movements, the possibility for them to leave the restricted area that they're in, the extent of the isolation, the availability of social contacts, the effects of the restrictions on the individual, and this is part of what interacts with the use of coercion as being a key point in terms of whether a person is or isn't deprived of their liberty. The duration of the restriction. And what
 
I'd highlight here, particularly for the social care context, is that the duration of the restriction was considered in proportion to the purpose of the restriction. This was something that was pulled from immigration case law in terms of saying if a person is being restricted for longer than is necessary to achieve the purpose for which they're being detained, then that's potentially something that tips over into a deprivation of liberty. But if they're only being detained for the period of time that is necessary to achieve the purpose that you're trying to achieve, then that may push against the idea that the person is deprived of their liberty.
 
The relative normality of the placement, that was again something that was seen in pre Cheshire West case law, and it was looked at in pre Cheshire West case law in terms of, is this the sort of placement that you would expect for a person who had care needs of this nature? And if it was a relatively normal placement for a person who had care needs of that nature, then again, that pushed against it being a deprivation of liberty.
 
The supreme court also found that potentially the purpose of restriction is relevant to whether there's an object of deprivation of liberty if the place of confinement was far removed to that of a prison cell. So if it was a very, quote unquote, normal placement that the person was living in, if the purpose was for the care of the person to promote their best interest, then that is something that we potentially push against a a deprivation of liberty existing. That would obviously be something that would be highly relevant under Capacity Act frameworks because, again, it certainly in theory and in as a matter of law, people shouldn't be in any of these settings unless there has been a finding that it's in their best interest and will promote their needs being met. Next slide, please.
 
A key factor, and this was something that's looked at as a relevant factor under both the objective test of whether the person is objectively defined with their liberty deprived of liberty and the subjective test as to whether the person has given consent to the deprivation of their liberty was the presence or absence of objection.
 
And just looking at a couple of the key quotes from the judgment, what the supreme court found was that the incapacist person's subjective attitude as expressed carries significant and indeed usually decisive weight according to the criteria set out in the Stork test. Conversely, if such a person manifests a view that they do not accept that situation, that opinion should also be respected and will usually lead to the conclusion if the object of circumstances indicate that they are detained, that they are subject to a deprivation of liberty. So this is really centring the person's objection as being really key in determining whether or not a deprivation of liberty exists. That's really different to Cheshire West. Cheshire West said that the presence or absence of objection was not a relevant factor in determining whether or not the person was deprived of their liberty. Here, the Supreme Court is saying that may be central.
 
Coercion was also seen by the Supreme Court as a necessary element in defining a deprivation of liberty. And what the Supreme Court said was that the stress for the individual and having their objections overruled may lead to suffering and result in the use of force or physical restraint. If the arrangements for an individual's care and treatment accord with their known wishes and feelings and they are happy with them, it may be difficult to conclude that they are subject to a deprivation of liberty.
 
There is unlikely to be any element of coercion present in that situation.
 
Again, this is something that is really different to Cheshire West and ratio is a real sea change in how the object of deprivation of liberty is is being viewed by the court.
 
When the court looks at the situation in Cheshire West, what they looked at is essentially what would happen if the person did start objecting, and they didn't necessarily look to whether they were objecting or not. In fact, many of the people in Cheshire West were seen as being broadly happy with the placements that they were living in and didn't need to be physically stopped or restrained from leaving them. Here, what the supreme court is saying is is there some factor of overcoming that person's wishes and feelings? And that's a necessary component for an object of deprivation of liberty existing.
 
The Supreme Court also noted that the presence or absence of sedative medications be relevant, where they are capable of suppressing objections.
 
One just point of a little bit of caution around this is that the purpose of giving sedative medication will almost never be for the purpose of suppressing a person's objections to the placement. It's always going to be given for some kind of therapeutic purpose. So again, it's what needs to be looked at here is, is it possible that it may have an effect of making a person less able to express an objection? Next slide, please.
 
So just looking quickly at the subjective test, the Supreme Court also considered that the concept of consent for the purposes of Article five was an autonomous one.
 
A person could be consenting to a deprivation of liberty, even if they don't have capacity under the Mental Capacity Act to do so. And they also found that the idea of consent for the purposes of article five was different to the test for waivers of other European convention rights, which require free and fully informed consent by a person with legal capacity to take that decision.
 
Again, definitionally for the people that we're talking about in the Mass Capacity Act population, they do not have that legal capacity to take that decision. So the supreme court found the treatment of consent under article five is fundamentally different to treatment of waiver of rights for other European convention rights.
 
They set a much lower test based on the person having some conscious awareness and having acceptance of the situation. And they found that the autonomous concept of consent, allowed individuals who lacked mental capacity to make decisions about restrictions, in relation to the residents of care, their ability to consent to those solely for the purposes of Article five. Though again, as you note, the Mental Capacity Act very much remains in effect and that consent would not suffice for the purposes of the Mental Capacity Act. Next slide, please.
 
The Supreme Court also just to give some examples of how they felt the subjective test applied, they consider that if an individual is placed in a secure care home, has de facto understanding of their situation and does not express or manifest any objection to staying there despite having a realistic opportunity to do so, they can be taken to have given tacit consent sufficient to negative the subjective element required for finding that there has been a deprivation of liberty.
 
One just brief point here I'd note is the use of the word secure, I I think is used interchangeably with locked. There I don't think this is secure in the sense that, for example, a secure mental health institution will be considered a secure institution. The I I don't think that part of parliamentary is actually that meaningful or significant. I think they just mean a place that a person is unable to leave because they are locked into that placement. Again, further in elaborating on the subjective test, if a person has a basic level of awareness and consciousness of their living arrangements that is sufficient to enable them to know and communicate whether they are happy or unhappy with them, they may be treated as able to give or withhold valid consent to confinement by an expression of their wishes and feelings.
 
I think this is a really interesting passage, and I suspect it's probably one that will get further, consideration by courts in terms of whether it is the consent to the confinement that the person is giving consent to or a broader question of whether the person is overall happy with their care arrangements. One thing I'd say, it's acting on behalf of the charities with Victoria Butler Cole and Oliver Lewis in this case that we had put to the court, and I think is possibly one that may need to get sussed out more is that there are many people who will give very positive views about many aspects of their care.
 
They may like their cares. They may like the activities that they participate in. They may like the food. They may like the company, but they don't actually want to live there.
 
And I think one of the key questions that you'd have to ask in looking at this is do they have positive feelings about being confined and being restricted rather than just broadly positive feelings about the care? Because those aspects of the care that they like may not actually be the restrictive aspects of the care. They may not be the ones that would potentially engage Article five. And looking at what that consent would go to may be something that will get looked at a bit further.
 
Next slide, please.
 
Again, compliance reconnaissance may carry less weight if it's accompanied by sedative medication. And the Supreme Court said that the approach taken to whether the person has given consent should be practical and realistic. And if they're serious doubt, seeing capacity person's attitude, no inference of valid consent should be drawn.
 
The Northern Irish reference, and I think this is also interesting, had actually proposed in their scheme for how this would take place, was that actively that the person would need to actively express positive wishes and feelings about the arrangement in place. It is not enough that the person does not express objection. There must be evidence of a positive attitude to the care arrangements. Next slide, please.
 
And one of the reasons I would strongly expect the Northern Irish scheme looked at this is the case of HL in the UK, which some of you, with longer memories of this may remember as, Bournewood saga and the Bournewood case that was decided by the Strasbourg Court back in two thousand four. This was a case of an autistic man with cognitive impairments. He lived in a shared lives placement.
 
And one day he was at day centre and he had a behavioural incident which led to him being taken to A&E. He was then admitted from A&E to a psychiatric hospital as an informal patient, and he was taken to be not objecting. He seemed to have been objecting for about the first twenty four hours, but not thereafter. And the view of the hospital was that he was compliant and never attempted or expressed the wish to leave, and the hospital considered that it was thus unnecessary to section him.
 
What they did say is that he would have been immediately sectioned if he had tried to leave.
 
The Strasbourg Court found that he was not consenting and his concrete situation was such that he was deprived of his liberty. And this obviously remains good law and remains a standing decision of the Strasbourg Court in relation to UK case law. Next slide, please.
 
The central reason that the Strasbourg Court found this was that they found that the subjective test for deprivation at liberty wasn't met in that case. And they said that the fact that HL had not tried to leave or expressed a wish to do so was not a a distinction to be of central importance under the convention in determining whether he was deprived of his liberty, particularly when it is not disputed that he was legally incapable of consenting to or disagreeing with the proposed action.
 
And what the court found the Strasbourg court found in that case was the key factor of his concrete situation was that the health care professionals treating and managing the applicant exercise complete and effective control over his care and movements. And the fact that a compulsory framework would have been immediately used if he resisted or tried to leave. And as a matter of fact, we would only be released from the hospital if his treating conditions considered appropriate.
 
They found that his concrete situation was that he was under continuous supervision and control and was not free to leave. Any suggestions to the contrary was in the court's view, barely described by Lordstein as to the breaking point and a fairy tale.
 
So one of the reasons, again, I I I strongly suspect that the Agni scheme did not take quite the same stance in the supreme court on this is that the AHL in the UK case is is clear authority for the fact that incapacities compliance is not sufficient to meet the subjective test for the deprivation of liberty. This is why the Northern Irish scheme is suggesting that it needed to be something more than that. It needed to be some sort of actual positive acceptance, and there needed to be evidence not just that the person wasn't objecting, but they took a positive attitude about their placement. Next slide, please.
 
Just going through a couple of examples before I hand over to Claire, I think I've slightly overrun already, so I'll try not to drag on this too long. But some examples of people who were found not to be deprived of their liberty in by by the supreme court and some of the situations that they were in. One case, again, for those who have spent a lot of time thinking and reading about the Cheshire West case, the case of Meg in Cheshire West. And the current Supreme Court has said that neither the subjective nor objected test for the deprivation of liberty were met in the case of Meg. To give a sense of her situation, she was in a shared lives placement, regular home in the community, very close relationship with her shared lives care who she referred to as her mummy.
 
Meg did not attempt to leave, though it was recorded that she would physically stop for if she was doing so, though the door would be locked on normal occasions as as doors would normally be locked in a house.
 
Meg had limited communication and limited cognitive bill ability due to a moderate severe learning disability, and she was not on sedative medication. So the supreme court found that a person in that sort of scenario was not neither subjectively nor objectively deprived of their liberty because they felt she did have a positive view towards her placement. And that in any event, this was not exhibiting the sort of coercion that you would expect to see around a person who was deprived of their liberty.
 
The case of Meg in Cheshire West with this is we sort of escalate up the levels of restrictions that a person is in. Meg was also considered by the current Supreme Court to be neither subject to bleed or object to bleed by her liberty. Meg had a mild learning disability. She lived in a residential children's home where she was always on one to one or two to one care. She was subject to physical restraint when she had outbursts or challenging behaviour and was on tranquillising medication.
 
She was not someone who was regularly trying to leave the placement, but would be stopped if she was trying to do so. So, again, clearly, both different different sort of restrictions, higher levels of restrictions than Meg and showing perhaps not constant level of replacement in terms of the behavioural outburst, but that was not sufficient to trigger either the object or subject to test. Next slide, please.
 
The supreme court also said that the case of p in Cheshire West was potentially not a deprivation of liberty, though they didn't reach this issue. So this would actually still stand as good law that Pee in Cheshire West was deprived of his liberty. It's about the only aspect of the Cheshire West case that remains good law and was not explicitly set aside in the Agni judgment. So Pee was deprived of his liberty in his port of living accommodation.
 
He was not considered to be objecting. Physical restraint was being used. He was clearly not free to leave. There were findings that his life was made as normal as possible by the staff and local authority.
 
But just to give a sense of what his concrete situation is from the Cheshire West judgment, his life was completely under the control of the members of staff at Zed House. Cannot go anywhere or do anything without their support and assistance. More specifically, his occasionally aggressive behaviour and his worrying habit of touching and eating his continence pads require a range of measures, including at times physical restraint and when necessary, the intrusive procedure of inserting fingers into his mouth whilst he is being restrained. So that would still stand as an object of deprivation of liberty that the Supreme Court cast its doubts on that.
 
Next slide, please.
 
Briefly, the case of SM, which is case of Mrs Justice Levin from two years ago. This was a twelve year old child, probably in many ways more similar to the Meg case. SM had very significant cognitive and physical disabilities.
 
And she was described as having a physical inability to leave because she was unable to form any desire or attention to do so. The Supreme Court considered that Levenge was right to say that she was that those she was subject to continue supervision and control. This was not a deprivation of liberty.
 
And what they said is essentially questions about whether there are positive obligations under articles three, five, and eight to help a person who is not physically mobile to leave those were separate to the questions of whether that person was deprived of their liberty. Next slide, please.
 
Just very briefly as we go on, people in minimally conscious states, such as the case of Ferreira and Briggs, were not considered to be deprived of their liberty. So that's been pretty much the standard accepted law since Ferreira was handed down in twenty seventeen. So that remains the case.
 
What's newer in this is that certain hospital inpatients who are prevented from leaving, if that is in keeping with the ordinary expectations and conduct of life, are no longer considered deprived of their liberty. So some of the examples given as an individual in hospital to receive treatment and who for their own protection would be prevented from leaving while, say, confused and unable to think because of medication would not be regarded as suffering a deprivation of liberty. And a presumption is a person who is unconscious and kept in care to have medical treatment administered does not suffer a deprivation of liberty unless there is evidence that they are in fact in detention or there's an established pattern of behaviour should they clearly do or would object to being cared this way. And last, I believe last slide.
 
Again, just another couple of examples of a person experiencing catatonia. And this is, I think, broader definition of catatonia possibly than strict medical suggestion of it. This was suggested people who were suffering severe dementia or in the aftermath of suffering a stroke or traumatic head injury and were unable to express any view at all about what should happen to them whether verbally or by physical manifestations of contentment or discontentment cannot be deprived of their liberty.
 
Same applies to people who are, quote, so profoundly disabled that they cannot conceptualise leaving, let alone physically achieve this, and that in individuals in this category do not have any bodily physical physical liberty to exercise irrespective of their circumstances. And since there is no possibility of anyone contradicting their will, it cannot sensibly be said that anyone is subjected into treatment which constitutes a deprivation of physical body.
 
Next slide, please.
 
That's it. I will hand over to Claire. Thank you very much.
 
Great. Thanks, Arianna. Claire, just crack on.
 
Claire Webster: Thank you very much. Thanks, Ben. Thanks, Arianna. So I think it's clear from what we can see in our activity in Q and A and everything else. There's a lot of questions coming through and whilst I probably won't be able to answer all of them, the purpose of what I'm going to talk to you about is to try and bring some cautious practicalism to a very complex legal shift to try and give you some ideas to what it might look like. So next slide please.
 
It's just a very brief overview on who I am. So as Ben said, I have come from a variety of different places. I'm a social worker by nature and nurture of course. I absolutely embody what I would like to consider social work values. This is of interest to me not just from a procedural element but from a human element. I currently work for DCCI, so we do training consultancy and I'm going to show you part of what our kind of consideration is in terms of applying this from a practical perspective. So next slide please.
 
Okay, so what I want to talk to you about first of all is some of the shift in terms of how do we record this? How do we genuinely have a think about evidencing some of the elements of this? Bearing in mind, and I will cover this at the end really, there's a lot that we don't know and there's a lot that we need to wait for guidance for. So this is my general, what I hope might be helpful in terms of consideration.
 
So we know first and foremost the biggest shift in consideration is a really a much stronger positioning on considering the person's wishes and feelings. And we know that this is very natural and connected to good mental capacity practice, but there's got to be a real evidence base for this in terms of considering when we are thinking about tacit consent and valid consent and all of those elements. So we need to start thinking about the What evidence do I have about how this person experiences those arrangements? So we need to think about their current situation and how they experience them.
 
Then we need to have a think about objection or the resisting of those arrangements And I know I can see a flurry of activity in relation to that. Does that mean a whole arrangement? Does that mean to some of those arrangements?
 
I think what I would say in terms of reassurances, whatever form of objection there is, whether that falls under Article five compliance deprivation of liberty or it falls into considering best interests, it is still important to record objection in any manner whatsoever and to consider that over a period of time.
 
Then the lived experience of those restrictions. So lots of people have already alluded to the fact that this could be a very long standing situation for a person. It could be very new. So we need to consider how they experience it in terms of yes, they may well seem compliant and happy.
 
Has it been quite a recent change for them? Is it something that they've settled into? So thinking about is that multi-factorial? It's that genuinely getting to know a person and how they experience their everyday life.
 
And then there's the understanding and acceptance of support. Now there's a slight tweak I have on this. We've been having some conversations in terms of general awareness around restrictions and I think there's a lot that we have to wait for the Department of Health to clarify in terms of what we actually constitute as relevant information when it comes to somebody's awareness and understanding of their situation for the purpose of Article five in this deprivation of liberty. So thinking about the person's own understanding and acceptance of their support, but do they genuinely understand, you know, are there some things that they may feel more restricted to or they're aware of that are might be constituted as a restriction or not at a very, very basic level and thinking about how you record the person's wishes and feelings within that as well.
 
Next slide, please.
 
So I want to give you a very practical overview in terms of the actual shift. What does this look like? And I do this very simply, not only to be inclusive and accessible, but to help anybody, whether that be a family member or somebody understand, but also practitioners understand genuinely what does that shift look like in practice. So before when we got to twenty fourteen we had this acid test applied, had this continuous supervision and control and we had this does it apply does it not apply and generally people aired on the side of caution and you know sent their referrals in.
 
But now really what it's asking for is a bit more of a deeper look into that situation. What we are going to be looking at now is what's the overall reality of the person's situation. So rather than does this tick the box in terms of continuously provision and control and not free to leave and looking at that lower bar that we sort of constituted on the mid case, we now need to look at the situation as a whole and really sort of dig deeper into the overall experience of those restrictions and the awareness of those restrictions. So instead of this binary answer in terms of is it or isn't it, we're now thinking about holistic assessment and as Arianna alluded to, there probably will be lots more different interpretations as to what's more restrictive, what's not, what's relative normality, but it has to be more holistic.
 
It has to be much more in-depth on an individual situation.
 
There's a focus on restrictions but actually now what we're looking at is not just the evidence of restrictions but how the person presents their wishes and feelings within those restrictions and the context in terms of necessity, proportionality, the nature, the purpose, all of those questions.
 
So it's not just about there are restrictions and it might amount to a deprivation of liberty. It is actually what are the restrictions and does it amount to deprivation of liberty because of the nature, severity and all of those questions.
 
And rather than this kind of process led sort of element of, you know, we had lots forms, tick the box as soon as somebody lacked the relevant capacity to make a decision about care arrangements and they might be continuously vision control, we dared on the side of caution. We're now looking at more of an analytical approach to those scenarios where people are potentially deprived of their liberty. So looking a bit more in-depth and asking more questions, more curiosity, absolutely more curiosity. Next slide.
 
So this is just a slight highlight on something we shared recently. It's an info-graphic we have shared around slides, but effectively to try and give us a little bit of more practical thinking when we're trying to apply this new test. So rather than looking at continuous supervision and control, we're now looking at what restrictions are in place, how long have they been there, how restrictive is the placement compared to ordinary life? And that's something that's taking more of a focus now.
 
And what is the purpose of those arrangements? Then we're considering does the person understand their living situation at a basic level? Do they know where they're living? Do they understand what is happening around them?
 
Do they understand that they're living there because they need care and support? It's all of those kinds of questions now in determining their basic and it is a basic understanding. And are they genuinely accepting of their arrangement? So we know that yes coercion is definitely a consideration.
 
We know that where there is sedative medication used for whatever purpose you need to a lot of caution in relation to acceptance of their arrangements. We need to think about you know are they appearing settled expressing agreement and doesn't object to, but we need to see this over a period of time. So I'd say air caution in terms of a single viewpoint on this. Have a look at how they've been for a longer period of time.
 
And very quickly in terms of the conversations that we've been having is I actually think this is probably going to take a little bit more digging in than is realised in terms of we're thinking you know let's do a capacity assessment, let's think about consent in these arrangements. Actually we are going to be still asking quite a lot of questions to determine consent for the purpose of Article five even when it sounds like the questions are quite simple in their asking because evidence is going to be required. Okay next slide please.
 
So just to give you a reminder, so for me it's practicalism. One of them is there is information that's coming come from ADAS. There is a letter that's gone around that is saying effectively we are waiting guidance. There is a lot we can't say is going to happen or the thresholds of various things before it's even tested, but really the general basic guidance is needed in order to think about what we're looking for when we're asking certain questions in this arena. So ADAS have already stated that there'll be a period of time whilst they consider how whilst we all consider how to manage and review the large numbers of people whose authorisations are already in the system. They believe work on these cases can be paused while guidance is developed and agreed and I put a caveat on that it doesn't mean stop everything and down tools, it's just have a stop and a think before we decide what not to do in these situations is effectively sort of the general advice and guidance.
 
A reminder that this whole thing is not about removing human rights, it's to reinforce them, safeguards remaining central.
 
The judgment should not be interpreted as reducing protections and local authorities should await that national guidance before making any huge decisions about how to respond to it.
 
Department of Health and Social Care have submitted a message for community care to effectively say they are going to set out guidance. We are expecting that soon. I wouldn't say we'd expect it in the next twenty four hours or so, but it should be hopefully within the next couple of weeks, but we don't know for certain, but it should be soon. Okay, next slide please.
 
So I think that's generally repeating the point. I think it's just really reminding you recording is going to be key about a person's wishes and feelings and objections over a period of time.
 
And just to go on the next slide.
 
What I want to do is to reinforce the point from a different a variety of different perspectives. From a social work perspective, we've got to make sure that we're doing mental capacity, act processes properly, but really considering wishes and feelings and their understanding of restrictions.
 
From the perspective of care homes, I think generally just make sure that our recording is taking into account those objections over time, wishes and feelings and restrictions that are in place ready for the people for people coming in and asking those questions and of course raising concerns as and when required.
 
But how well do we currently evidence those wishes and feelings and assessments? That's the big thing really at the moment. Do we genuinely on a regular basis record what a person's views and wishes are to their situation?
 
Are we confident at the moment that staff can distinguish between acceptance, acquiescence and genuine consent?
 
And guidance hopefully will start to pick up what the difference might be and if it's not now let's have it let's ask that question. Let's try and work together to try and work out what we understand about the difference. What can we do now to strengthen our practice and ensure the person's voice remains central?
 
Advocacy has been a huge consideration and conversation in this and we know that the advocacy role that is aligned at the moment with deprivation and liberty safeguards won't go away but if we've got fewer people eligible, how do we maintain the safeguard that they get that is advocacy? And finally, because there's a whole purpose, it's a human, not just a procedural impact here in terms of the law shift and change. Just want to give a guidance if there are any family members is to look at your local councils, look at local areas for their local information that they hopefully will be sending out as soon as they get national guidance remember that they will not put theirs out first before national guidance is given and consider legal authorities such as lasting power of attorney and deputy-ship for making health and welfare decisions to make sure that you can support your loved one in putting forward their views and wishes towards their arrangements.
 
And I think that pretty much sums up what I wanted to say really.
 
Ben Troke: Brilliant. Claire, thank you ever so much.
 
We have about fifteen minutes left. I've got five minutes I want to use to wrap things up with I will let you, Arianna and Claire bask in the acclaim of the emoji applause for a moment. So we've got about ten minutes or so. I've been trying to answer questions in the Q and A in the chat box as best I can. People putting your hands up, I'm sorry we can't take individual questions other than looking at what's in the chat box.
 
I want to start with a point I said I would, which is about this landing differently in different settings.
 
So if we look at the spectrum of cases from acute hospital inpatient medical treatment through to the private domestic home residential care and supported living, especially where that looks a bit like residential or institutional care somewhere in between. It seems to me do you both agree that the Supreme Court is pushing us away from finding a deprivation of liberty in that acute hospital medical treatment scenario if the care you're giving is just the care they need? But going further than that Ferreira carve out, it seems to me very unlikely that there is a medical treatment doll in an acute hospital setting unless the features are there that would mean you are probably going to court to argue about the medical treatment itself anyway.
 
Do you both see it that way?
 
Arianna Kelly: I do. I mean I think there will definitely need to be test cases on this, and it will definitely need to play out. But I mean I think there's a lot in the judgment that would strongly suggest that in particular, your lighter touch deprivations of liberty of things arising out of giving sedative medication, light touch physical restraint, locking wards, and that sort thing if people are in states of confusion. I I think that would knock out a lot of the medical dolls right there. But I I suspect it is also one that the courts may opine on in the relatively near future because I think the there is a lot of Strasbourg case law as well that talks about, again, on an article eight basis, the bodily integrity of the person and the need to have a clear basis for that. And so I think there may need to be much more of a digging in in terms of what Article eight requires in relation to that.
 
But I mean, that's very much watch this space rather than any app currently at I suspect that where we are going to court to argue about medical treatment, the courts might get a chance to say well I don't think this will be a doll anymore because I think that's where we're going to get that bit of case law.
 
So put acute hospital medical treatment for now to one side.
 
In the person's own home that's over domestic setting the opposite end of the spectrum again, Agni seems to me to be stacking the odds against there being a dole there, unless something extraordinary or extreme is happening.
 
My reading of that is that there's no longer a real role for the cop dollar eleven, the streamlined process where we pile high churn through the uncontentious uncontroversial deprivations of liberty, because either we could we're going to say well that's the person's own home, relatively normal you know, purpose etc. It's all very reassuring. Or we're to say the thing that makes it suitable for the COPPAL11 process is they're happy.
 
Or at least there's no objection. So all the things that make it suitable for the streamlined process seem to me to now mean it's no dole at all.
 
Do you see it that way?
 
Claire Webster: I definitely agree. I think anything that seems more straightforward in its presentation is less likely to meet the criteria from how I interpret it. I think rather than spending too much time going down the philosophical arm of this in terms of consideration about relative normality is you know why wouldn't they choose their own home or living with their family as part of that even if you know there are quite I suppose heavy care and support arrangements that are in place they are sort of more leaning towards that not meeting the criteria than definitely not, definitely will So that's fine.
 
Ben Troke: Okay thank you. Last one then to knock out some of the big headings: liberty protection safeguards dead in the water?
 
Claire Webster: I don't think it's dead in the water. I'll get Arianna to come in.
 
Arianna Kelly: I think I mean, my I think it's possible because I but I I think it's sort of interesting actually going back to the history of this because, I mean, liberty protection safeguards are now would just be the next iteration of standard authorisations. Standard authorisations were meant specifically to fill Bournemouth gap, which was the incapacitist compliant people. And there was pre Cheshire West case law, which actually said really explicitly that standard authorisations were not appropriate for cases where you had a genuine dispute over a person's residence or care arrangements, and that should be done by way of welfare application to the cop rather than just slapping a standard authorisation on it at that point in time.
 
It would seem to me that there are very few people left in the LPS category for this because if you are unless you're on the absolute razor's edge of having no opinion whatsoever and you are neither objecting nor showing tacit acceptance of this, then possibly that is your remaining Bournwood gap of those sorts of people. But otherwise, it would seem likely you're either not deprived of your liberty or you should be making a welfare application.
 
Yeah okay. I mean on that, if it's now the case that some sort of coercion is essential, some sort of overriding of objection is essential for there to be a deprivation of liberty, Are there going to be any DOLS authorisations where there won't have to be a Section 21a challenge?
 
I ask rhetorically.
 
I think it might be that we have fewer cases, they're more complex and they're more contested, because I'm not sure there's room left for Dole's authorisation without it being challenged through Section 21A. Let me ask you a different question about coercion.
 
So we now know under continuous supervision, so just on the confinement test rather than the consent valid consent whatever we mean by that.
 
On confinement we now know continuous supervision control and not free to leave is not enough. It's more complicated than that.
 
Is it fair to say acid test continuous supervision control not free to leave plus coercion is now enough? And if not, why not?
 
I mean I think it's more complicated than that if I'm honest just because I think we're going to the multi test. I I think pretty much everything's in the basket now in terms of looking at it. I think what the supreme court has said is coercion is necessary. The language of continuous supervision and not free to leave is one that was in HL in the UK. I put that earlier in the slides. And that particular phraseology has been used by the Strasbourg court many times in deprivation of liberty cases to define some of the essential elements of of that. So, I mean, I think it's now continuous supervision and control, not free to leave plus coercion.
 
But I think given some of the examples given by the Supreme Court, I mean, the Meg example, I don't even know if those factors are enough. I think there possibly still needs to be something else above those from the Supreme Court's perspective to make it into a doc.
 
Okay so continuous supervision control and not free to leave plus coercion plus special source that might turn something into a deprivation of liberty. I mean there is an important point about there are other safeguards than those triggered by Article five. So we need to be clear we're not talking about a binary cliff edge of you know people are bothered about you or they're not according to whether you are in or outside the scope of Article five. But that's something we need to come back to.
 
Okay can I just give you a couple of minutes please to give me your thoughts on incapacitous consent?
 
Ben Troke: So perhaps Claire, can I ask you about the practicalities of that? What do we think that's going to mean in the context of consenting to a DoL?
 
Because consent to or sorry happiness with what? All of your care? Every little bit? Most of it?
 
And when? Most of the time? Always? Not on Thursday afternoons because I don't like the woman who does the bingo.
 
How do we deal with the fluidity of happiness if we're going to build on that you are or you aren't deprived of your liberty for a whole machinery of Article five safeguards.
 
Claire Webster: I'm going to pull on a funny comment somebody made in a chat the other day saying they're looking forward to seeing the first case of fluctuating happiness as a test. And I'm sure that's something that could be genuinely argued for a lot.
 
I think honestly I don't actually think it's going to save any time. I think in interrogating the situation of consent and particularly the relevant information bit we still really need to grapple with because there's bit of the objective arrangements for surely they're going to need to have some consideration about.
 
I actually think they're still going to be asking the same kind of level of detail that you would expect in a capacity assessment and I can't and I know we will be doing it anyway because you have to do a capacity assessment but how is it going to differ?
 
I can't foresee it for example being a simpler test which is right I think it's absolutely right because we I don't think we should lean lightly when we're considering consent for Article five purposes. But I think we have to be very very clear when we're digging into it about what is it they are objecting to. Is it generally an uncomfortableness? Say for example we have individuals that might have sensory issues that are responding to something they don't like and it's part of how they would generally respond or is it actually they genuinely are you know unhappy or happy with their overall situation and they've got a very basic awareness of where they are and the fact they need some help with their everyday life. So I don't think there's an easy answer but I just don't think it's going to be. There's no simple test and I think capacity assessments are going to need to be done more thoroughly rather than less I think for this.
 
Ben Troke: Yeah I think that's fair. Okay Arianna, if I just give you sixty seconds can you tell me what you think about the risks of introducing to the health and social care landscape this idea of incapacitous consent and how do we mitigate those risks please?
 
Arianna Kelly: I think I mean if I can say I think the number one risk is going to be confusion because I think what I think is really important to remember in all of this is the Mental Capacity Act is still very much real and it very much is still the domestic law. Yep. People can't make the decision about where they live and what care they receive because of this judgment. That's exists, and it's always existed.
 
And if people are objecting to that, then you do need to consider the extent to which court potentially need to be involved in order to resolve these sorts of disputes. I think some of the lessons of, again, pre Churchill West era, and particularly the the Meery case, I think, being really key example of that is that was someone who was not considered deprived of his liberty, But the central dispute was actually about where he should live and whether it was in his best interest to be where it was. And the the the deprivation of liberty tale, I think, in many ways, wag the dog because actually what happened in that case is that no one could really get access to the court until it was recognised as a deprivation of liberty.
 
But that shouldn't necessarily have been the thing that prevented it from going to court. And I think that's sort of the main thing that I I would say in all of this is the disputes about care, the disputes about restrictions. I don't think any of that fundamentally changes. And if those things are live disputes, the pre Cheshire West case law would say that needs to come to court if there is a real objection, if there is a real disagreement about something profound and important in a person's life that needs to come to court.
 
That may be more challenging now that the person isn't recognised as private or liberty, but that doesn't take away the MTA imperative for it.
 
Brilliant. Perfectly tees up. Thank you ever so much. The final thought I wanted close with, if you could click on a couple slides please, Kieran. It seems to me if everything hangs on whether somebody is or isn't deprived of their liberty then perhaps something else is going wrong.
 
And the point I'll to labour at the outset and I'll labour again in closing is this is about getting the Mental Capacity Act right first and foremost. Every single case I've ever seen of a problem about deprivation of liberty is because the Mental Capacity Act has been misunderstood or misapplied.
 
This Supreme Court decision is about where we draw the line to define 'deprived of liberty' for the purposes of triggering certain safeguards. This is not about changing the substance of anyone's care. You don't read the Agni judgment and change a care package.
 
It's really important that the care package is driven by appropriate assessment of needs, services that are available, and then can they make this decision for themselves, and if they can't then proper consultative collaborative best interest decision making.
 
If we were always getting all that right, then the super structure around deprivation and liberty would actually have much less work to do anyway. Okay so let's start with that.
 
Where you've got a dole's authorisation, where you've got a court order that authorises a dole in place now for someone who turns out not to be deprived of liberty because the Supreme Court has moved the goalposts, well so be it. I mean of course that needs to be reviewed and over time it will come up for renewal and it probably doesn't need renewal. There might be good reasons why we rush off to court or rush off back to the supervisory body to have that withdrawn or ended.
 
But it does not mean that anyone is being unlawfully deprived of their liberty in the meantime. I'm very glad that ADAS have withdrawn that bit of a guidance or their initial commentary on it, which raised that point, I think wrongly.
 
There will be new roles for people or roles will be different for people across health and social care. We are not going to be looking at the ACID test for confinement and we're not going to be disinterested in the subjective bits around valid consent as we were with Cheshire West. We're going to have more thinking to do and it's going to be harder thinking about defining confinement.
 
And those teams who've just been dealing with the acid test are also going to have to be thinking about expression of happiness grappling with all those difficult issues we've talked about. It's going to need a different size, a different shape, a different skill set of teams and we're going to need to be thinking about that. And I'm very conscious this is at the moment in a world where many organisations in health and social care are going through big changes in staffing and workforce.
 
The roles will be different. It doesn't mean the roles won't be there and the work won't be needed.
 
There will be those who mourn the end of Cheshire West but I think we should be careful not to idealise it. We never had the resources to bring Article five safeguards to the hundreds of thousands of people that the acid test caught.
 
And all we had was hundreds of thousands of people unlawfully deprived of their liberty and maybe maybe the finite pool of resources spread so thin that the people who really needed it most didn't get it. So there needs to be that balance to things. I know it's two o'clock but if you bear with me I will just wrap up in a couple of minutes. I apologise to overrun slightly.
 
There are risks to mitigate. I am deeply troubled by the idea of incapacitous consent because I spend a lot of time getting health care professionals to understand that you don't have to consent without capacity to make that decision for yourselves. And I think the confusion of this phrase we will say to all blue in the face this is all about Article five not about the substance of the care' or it's asking for trouble that we use the word consent for both though isn't it if we mean different things? So there are problems here, there are risks, but they can be mitigated.
 
Need to think about how we deal with them positively. We cannot wish them away. There will be fewer cases of people who are deprived of their liberty but those cases will be much much more complex. And I don't think, as Clare was saying about assessing the subjective element and valid consent, I don't think we take for granted that this is going to be an end to the work here or much less resources are complexity of what we now have to do to draw the line in a different place to catch fewer people is clearly the Supreme Court's intent.
 
But the line is less clear now and a lot of work and a lot of time is going to be needed to clarify that over time. What that means is that uncertainty and the subjectivity in practice is going to lead to inconsistency both within organisations and between organisations. And actually I think in the case law I think we will see a flurry of cases that say different things because Agni is now our point of reference. Is this a dull?
 
Ask Agni.
 
We're going to look through the judgment and because it's written the way it is, there are different bits you can cherry pick. And I think we're going to see contradictory case law over time. It's going to be really important to keep up to date with those legal updates and with guidance as it emerges, but also to share best practice and benchmark within and across organisations so we can get through that inconsistency to a little bit more clarity as quickly as possible.
 
And my last point is don't panic.
 
We can't change everything overnight. And this is the reverse of Cheshire West where overnight we realised we were unlawfully depriving thousands of people of their liberty. It turns out we're not.
 
But we need to get back into line with the processes alongside that. Guidance will come.
 
We need a new update to the Code of Practice and I hope we will get them soon. The CQC's guidance out this morning recognises this uncertainty and talks about leeway while we learn.
 
And above all else, let me end on the point I started with focus on getting the Mental Capacity Act right and everything else becomes a whole lot easier. Kieran, if you just put up the last slide while I close things up. So thank you so much for joining us. I am sorry to have overrun by a couple of minutes. That's me and my contact details. There are three QR codes on that slide.
 
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Because this is the start of a conversation that's going to be going on for some time.
 
Look me up on LinkedIn if you're on that and I keep putting case updates and news and resources on there as well. So thank you so much for your time today. Thank you very much again to Arianna and to Claire our guest speakers. Thank you for joining us.
 
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