Further Guidance On Cheshire West Released By The Law Society

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...