The impact of Cheshire West; DoL &

court of protection and liabilities Elderly care conference 2015 – Ben Troke

Deprivation of Liberty

Ben Troke, Browne Jacobson LLP

Today we will be talking about…

•

•

•

•

•

•

•

introduction and context

Deprivation of Liberty

the road to Cheshire

now what?!

CQC perspective

what next?

Q&A

MCA s5 – power to act reasonably

• no liability if you reasonably

–

–

think P lacks capacity for a decision, and

do something you think will be in their best interest

Limits on s5

• but s5 does not cover ‘restraint’ unless –

–

reasonably believed to be necessary to prevent harm, and

proportionate to likelihood / seriousness of that harm

• nothing authorises ‘Deprivation of Liberty’, except –

–

–

Schedule A1 [Deprivation of Liberty Safeguards – DoLS]

court of protection order

necessary for life sustaining treatment or ‘vital act’, while a

decision is sought from the court

Art 5 – right to liberty and security

• “everyone has the right to liberty and security of

person. No one shall be deprived of his liberty save in

the following cases and in accordance with a procedure

prescribed by law” –

–

–

–

after conviction by a court

lawful

lawful

lawful

arrest

detention of a minor for educational supervision

detention for the prevention of the spreading of infectious

diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants

lawful arrest to prevent unauthorised entry into the country –

‘Lawful detention’

• everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful (Art 5(4))

everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation (Art 5(5))

•

• But - what does ‘Deprivation of Liberty’ mean?

– “there is no simple definition of deprivation of liberty” (DoLS code of practice, 2008, ch 2)

Cheshire West – Supreme Court, 19 March 2014 –

• NB – identifying a DoL triggers safeguards – we should “err on the side of caution” to protect some

of the most vulnerable

Any questions?

Get in touch if you

questions or would

information.

have any

like further

t +(0)115 976 6263

e ben.troke@brownejacobson.com