As BIHR’s newest Human Rights Officer, the “Cheshire West” case is one I’ve had to get up to speed with quickly; it features in some way at every BIHR human rights capacity-building session I’ve attended. Today, Sunday 17th March, marks the third anniversary of this important judgment so what better time to revisit it, especially as it falls during March for Human Rights - our month-long campaign to show the relevance of human rights to people’s lives. The Cheshire West case reminds us of the importance of applying other law in light of the Human Rights Act, so as not to create practice which puts people’s rights at risk or worse. This week has also seen publication of the Law Commission’s much-awaited recommendations on key issues arising from this case.

The pivotal ruling of the Supreme Court on the right to liberty in the 2014 "Cheshire West" case has informed our work at BIHR for the past three years. It has had a huge impact on everyday life, particularly in care settings, and has become central to whether people’s human rights are being protected, risked or breached. We’ve used the case as an example in our most recent resources, ‘Mental Health, Mental Capacity and Human Rights’ and our soon to be launched ‘Learning Disability, Autism and Human Rights’ (out on the 22 March), because it needs to be understood and shared widely, reminding us all that people who have mental capacity issues have the same human rights as any other person.

So what was "Cheshire West" about?

The case involved three people, including two sisters, each living with learning disabilities and different kinds of needs. It has been determined that each of the three people lacked capacity to make decisions about their care and treatment, and all three were living in different care settings. Whilst the adequacy of the care was not at issue, what was a concern was the fact that each person was under continuous supervision and could not (or would not be allowed) to leave on their own accord. Not having arbitrary restrictions placed on your movement is a key part of everyone’s right to liberty, protected by our Human Rights Act (Article 5). Restrictions can only be put in place for one of a limited number of lawful reasons, and even then safeguards to review the deprivation of liberty must be in place. In the Cheshire West case, the courts were asked to decide whether the care being provided to the three people was depriving them of their liberty (and if so whether adequate safeguards were in place).

Initially, the court ruled that as continuous supervision would have been usual for anyone in their situation, that they were comfortable in the care, and that the measures were in place for their best interests, then it could not be a deprivation of liberty. This raised some important questions about universality – the application of human rights equally to everyone.

Recognition of the right to liberty

Five years later, the Supreme Court saw the case rather differently. In this judgement, the focus was on the fact that even though a person who lacks capacity about care and treatment may not express a desire to leave their care setting, if they would be prevented from doing so this is a deprivation of their liberty. Essentially the Supreme Court confirmed, in strong terms, that having a learning disability does not mean that the right to liberty, and the safeguards that it entails, can be applied differently. The judgement therefore overturned the first ruling, as Lady Hale said:

…what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person.

What this means for health and care services

The judgement set out the ‘acid test’ that health and care professionals must follow when faced with similar circumstances. Whether a care setting and its restrictions is relatively “normal” or in a person’s best interests is not relevant to whether their liberty has been restricted, to determine this the acid test now states:

  1. Is the person subject to continuous supervision and control? and
  2. Is the person free to leave

A restriction may be for perfectly reasonable reasons but it has to be identified as a deprivation of liberty and the safeguards for this right must be in place. So even if, for example, the locking of a ward in a hospital was normal for a person and they had not challenged the measure, but they fit the three stages of the ‘acid test’ above,  they are being deprived their right to liberty. This means the relevant procedures, here the Deprivation of Liberty Safeguards (DoLS), need to be implemented to protect their rights. As Lady Hale in the Supreme Court said:

The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.

Safeguarding people’s rights

Essentially the Cheshire West judgment flipped a lot of practice on its head – many people had not had DoLS in place because it was thought that their positive and “relatively normal” care arrangements could not be a breach of their right to liberty. In our experience at BIHR it is too often forgotten that safeguards are to protect people’s human rights, to safeguard against breaches of their rights rather than a bureaucratic process to hinder services.

The Supreme Court ruling means many thousands more people should be being assessed for DoLS (and having community deprivations reviewed). However DoLS processes were not set up to consider human rights in the way confirmed by the Supreme Court, and this has resulted in an over-stretched system, which places people’s rights at risk. With no further financial resources available from central government to support services to respond to this new reality, the Law Commission was asked to look at the DoLS law in 2014.

The Law Commission recommendations and the future

Released this month, the Commission’s key recommendation is to introduce new Liberty Protection Safeguards to replace DoLS. The aim is to simplify the process whilst giving greater protection to a wider range of people, now including 16-17 year olds for example. The new safeguards aim to streamline the system in a number of ways, including:

  • an authorisation would be based on care arrangements and therefore covering multiple settings, not just one setting as with DoLS.
  • the responsible body for these new safeguards will be split between local authorities, as before, and hospital managers, aiming to spread the load.

At this stage, these are recommended changes so we will now have to wait for the government’s response, as well as considering the human rights implications of the proposals to ensure they remedy the risks of the previous system.

With all of this in mind, more knowledge about our Human Rights Act and our right to liberty, the power that universal protections bring is being recognised as an ever more valuable asset in everyday health and care practice.