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Deprivation of liberty lawyers give cautious welcome to Government response to House of Lords report following Cheshire West

Following the historic deprivation of liberty case earlier this year the Government has published a report, Valuing every voice

Adult without capacity can be deprived of their liberty

12 June 2014

Sarah Westoby, who was instructed in the historic Supreme Court cases known as Cheshire West earlier this year, has given a cautious welcome to the Government’s response to the report from a House of Lords Committee on the subject. 

The historic judgment in March 2014 gave long awaited clarity to the legal definition as to what constitutes a deprivation of liberty for people without capacity who cannot give consent to their detention.

This includes people with learning difficulties, brain injuries, who are suffering from dementia or who are living with autism.

The ruling by Lady Hale said that the individuals involved in the case who were living in supported accommodation and foster care were deprived of their liberty.

The judgment affects thousands of people in the care of local authorities as many are now likely to fall within the definition of a deprivation of liberty as given in Lady Hale’s judgment.

Councils have estimated that they will have to deal with up to 80,000 extra Deprivation of Liberty Safeguards authorisations (DoLS) as a result of the judgment.  Councils must assess and review someone who is thought to be deprived of their liberty either under the DoLS procedure, or by application to the Court of Protection.

A report produced by the House of Lords Committee in March 2014 which was set up to examine the Mental Capacity Act 2005 (MCA) concluded that many vulnerable people were being failed by the law.

It said that the existing Deprivation of Liberty Safeguards system should be abandoned and replaced with a system better designed to protect vulnerable people at risk of abuse or neglect when being held in residential accommodation or care homes.

In its report, Valuing every voice, respecting every right: making the case for the Mental Capacity Act, the Government has agreed to set up a Mental Capacity Act Advisory Board which will publish an annual ‘State of the Mental Capacity Act’ report, gather evidence and highlight priority areas.

The Government has not accepted that the Deprivation of Liberty Safeguards system needs review but has asked the Law Commission to examine the issue of supported living, and potentially draw up a new legislative framework that would allow for the authorisation of a best interests deprivation of liberty in supported living arrangements.

The Government will revise the Court of Protection Rules, with a view to having new rules in place by April 2015.

Sarah Westoby said:

“I welcome the Government’s proposals to promote awareness and understanding of the Mental Capacity Act.  It is disappointing that there is no commitment to overhaul the complex and confusing Deprivation of Liberty Safeguards (DoLS) system, but at least ways to improve the the system will be considered.  

“I am pleased that the Government has asked for a review of the supported living issue.  At the moment people living in these circumstances can only apply  to the Court of Protection for redress.  

“I welcome the proposals for a new legislative framework to authorise deprivations of liberty in supported living arrangements in a person’s best interestsand hope that the eventual framework will be far more user friendly than the existing DoLS system.”

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