Published June 2014
A recent decision of the Supreme Court[1] has expanded the application of Article 5 ECHR, the right to liberty, which could well be an impact on charities.
You may be affected if you:
- Provide care or accommodation to service users
- A service user lacks the capacity to decide whether or not to accept that care or accommodation (there is no deprivation of liberty if the individual is able to choose to stay and does stay)
- The provision of the service generally or to particular service users is being funded by the State: Central Government; Local Authority; NHS (the full extent of this requirement may need further consideration if the first two criteria are met).
It is worth reading the leading judgment of Lady Hale. The clear intention was to extend the application of Article 5 to as many vulnerable people as possible.
The meaning of deprivation of liberty
The Supreme Court decision, generally referred to as Cheshire West, set out the acid test:
- Is the individual concerned under continuous supervision and control?
- Are they free to leave?
The Court also confirmed the following factors are NOT relevant: compliance or lack of objection, the relative normality of the placement, the reason or purpose behind a particular placement.
The consequence of a deprivation of liberty
Authorisation is required to make a deprivation of liberty lawful i.e. some form of external scrutiny. In a hospital or registered care home setting that can be provided through the Deprivation of Liberty Safeguards[2]. In other situations an application to the Court of Protection will be needed.
Failure to have authorisation could lead to a breach of the ECHR, criticism from funders and/or the CQC and possible claims for damages.
It is vital to have the right mindset to maximise the prospects of correctly applying the law. The application of independent scrutiny is not a criticism of the care. It is intended to protect both the individual and those providing care. It is intended to be inclusive. If you start looking for reasons why it does not apply you may well end up acting unlawfully.
What you should do
- Review those service users who lack capacity against the acid test
- If you run a hospital or care home, review your procedures for applications under the Deprivation of Liberty Safeguards. Talk to your Local Authority (the “supervisory body”)
- If you look after individuals full time in the community you could well be responsible for any deprivation of liberty. Talk to the funding authority and discuss whether anything needs to be done and who will do it
- If you only provide an element of care such as a day centre, a more “overall” view needs to be taken. Again, engage with the funding authority but you are less likely to have to lead on seeking any authorisation
- Remember to think ahead. Deprivations of liberty are meant to be authorised in advance so you need to plan for new service users or changes in circumstances.
- Take advice if there is any situation where you are not sure you are on solid legal ground.
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