Cheshire West ‘acid test’ was wrong, rules Supreme Court
The legal test for determining when deprivation of liberty safeguards should be applied was effectively rolled back this week following a Supreme Court ruling.
Campaigners have reacted with alarm, claiming it will potentially put “hundreds of thousands” of severely disabled people at risk removing checks and independent inspections that protected them from abuse and neglect.
BASW said it will be writing to the government to seek urgent and clear guidance to social workers "during the period of upheaval and longer term".
How did this happen?
On Tuesday the Supreme Court reached its decision on a case brought by the Attorney General of Northern Ireland challenging a previous judgment by the court in 2014 known as the Cheshire West case. For more than a decade this ruling has provided the legal “acid test” for deprivation of liberty and when safeguards should apply. Though the ruling was formally for England and Wales, its impact was UK-wide.
This week’s ruling essentially says the 2014 decision was wrong.
What was the Cheshire West case?
This was a case brought on behalf of three adults with learning disabilities who lacked capacity against Cheshire West and Chester Council. They claimed the adults should be subjected to deprivation of liberty safeguards.
The councils argued that though the adults lacked capacity to make decisions and were living under restrictions, this was not legally a deprivation of their liberty because:
- Restrictions were in their best interests
- They were normal for someone with their disabilities
- They were in caring and supportive environments
- The adults were not actively objecting
- The placements gave them a better quality of life than other alternatives
The presiding judge, Baroness Hale, took a more rights-based approach. If the restrictions amounted to a deprivation of liberty when applied to someone without disabilities then that same principle should apply to someone with disabilities, she contended.
This led to the establishment of the so-called “acid test” which effectively ruled a person is deprived of liberty if:
1) They are under continuous supervision and control
2) They are not free to leave their placement
Even if the care is beneficial, the person is happy and not objecting, “a gilded cage is still a cage”, said Baroness Hale.
What was the effect of the Cheshire West case?
The judgement massively expanded the number of situations counting as deprivation of liberty and subject to safeguards. This included people in care homes, hospitals, supported living placements and even people being cared for by family members in their homes.
The ruling significantly increased workloads for social workers without a corresponding increase in resources. The system quickly became overwhelmed with heavy backlogs.
Did social work support the Cheshire West ruling?
Yes and no. The greater focus on rights and liberty as enshrined in Article 5 of the European Convention on Human Rights (ECHR) was very much in line with social work’s values and ethics.
The importance of this had been underlined some years earlier with the shocking abuse of adults with learning disabilities and autism in the closed environment of Winterbourne View revealed by an undercover Panorama investigation.
However some professionals felt the acid test was too broad, putting under scrutiny arrangements that were obviously caring and non-contentious.
How has this week’s Supreme Court ruling changed things?
Dame Brenda King, the Attorney General for Northern Ireland, asked the Supreme Court the following question:
“Does the Minister of Health for Northern Ireland have the power to revise the Deprivation of Liberty Safeguards Code of Practice so that persons aged 16 and over who lack capacity to make decisions about their care and treatment can give valid consent to their confinement through the expression of their wishes and feelings?”
This questioned whether an adult without capacity should automatically be regarded as being deprived of their liberty.
The Supreme Court said not so, unanimously agreeing that the health minister would not be acting incompatibly with Article 5 of the EHCR. The court ruled lack of legal capacity is not the same as lack of “valid consent” for the purpose of Article 5 of the Human Rights Act.
The judgment effectively overturns the Cheshire West ruling. It means the “acid test” (of being under continuous supervision and control and not free to leave a placement) is no longer enough in itself to warrant deprivation of liberty safeguards.
The decision is multifactorial and a range of factors need to be considered, including other ways an individual may communicate consent, the ruling found.
Presiding judges Lord Sales and Lady Simler said: “To treat the lack of legal capacity as an inability to express valid consent confuses the analysis.
“A person may not have mental capacity to make decisions about their care and residence arrangements, but if they have a basic level of awareness and consciousness of their living arrangements that is sufficient to enable them to know and communicate whether they are happy or unhappy with them, they may be treated as able to give or withhold valid consent to confinement by an expression of their wishes and feelings.”
What will be the impact of the new Supreme Court ruling?
The test for deprivation of liberty has been pushed back close to where it was before Cheshire West.
Fewer people will be legally classed as deprived of their liberty in locations like care homes, supported living and hospitals.
In Northern Ireland it’s estimated that more than 9,000 people will be affected.
Local authorities across England are also likely to adapt practice, significantly reducing application for DoLs.
Social workers accustomed to using the more clear-cut Cheshire West acid test are likely to need additional training in making multifactorial assessments of when deprivation of liberty applies.
The judgment did recognise that people who are objecting to their confinement are clearly not giving valid consent and a legal framework may be needed. However, there are well-acknowledged shortcomings in practice around services being able to recognise objection, especially when it is non-verbal.
Reaction
Annie Ho, chair of BASW’s Policy, Ethics and Human Rights Committee
"Yesterday’s judgement has profound implications for how social workers protect and promote the rights of people when they lack capacity to make decisions about where they are accommodated for care and treatment arrangements.
"It is unclear how adult social and health care organisations and professionals translate the judgement with immediate effect, in the current situation of substantial backlogs of DoLS applications from care homes and hospitals as well as Court of Protection applications for community deprivation of liberty authorisations in other settings. It is also unclear what safeguards will now apply for many people and their families under this definition of deprivation of liberty as set out by the Supreme Court in AGNI."
Joint statement from Mencap, Mind and the National Autistic Society
“This judgement sets us back decades and removes safeguards that history shows us are vital for disabled people.
“By removing independent checks, advocacy, and automatic access to legal aid, the court has closed the gateway to justice and support for many who need it most.
“Stripping away these safeguards makes it easier for abuse and neglect to go unnoticed behind closed doors. A litany of previous wrongdoings demonstrate how closed cultures, lack of independent oversight and restrictive care can lead to abuse scandals and decisions like this fly in the face of everything we've learnt.”
They added the “vast majority” of people currently protected by DoLs “will likely see their existing checks and independent inspections cancelled”.
Mark Cooper, BIA course leader and lecturer in applied mental health at The University of Manchester
“Two main points stand out for me. First, it suggests that a person who recognises they are in a care setting but does not necessarily have ‘full' capacity to understand their care plan or the wider risks, may not be regarded as deprived of liberty if they are compliant.
“On balance, I think this is a reasonable position. Given hundreds of thousands of compliant people who have effectively been unlawfully deprived of liberty due to assessment backlogs in recent years, I am not convinced that classifying this group as 'deprived of liberty' would provide any meaningful practical benefit or additional safeguard.
“The second key takeaway is that the judgment appears to abandon the ‘acid test’ as the basis for determining a deprivation of liberty and replace it with the more complex, ‘multi-factorial’ assessment which was used before Cheshire West.
“This approach will require a sophisticated degree of professional judgment and is likely to create significant disruption across health and social care. In particular, care providers may face considerable uncertainty about when to apply for a deprivation of liberty authorisation. “The pre-Cheshire West multi-factorial approach led to marked regional inconsistencies, creating a postcode lottery in whether people received appropriate legal safeguards.”
Martin Sexton, principal social worker for adults in Salford
“The Supreme Court will have a very significant impact on adults’ and children’s social care. It’s likely to mean that many fewer people will now be eligible for formal safeguards such as DoLs authorisations or Court of Protection orders.
“As social workers we need to keep advocating for the human rights of the people we’re supporting. We need to keep trying to understand their wishes and preferences and minimise any restrictions involved in their care. If someone is objecting to being in a particular place then we need to respond and try to find a better option for them.
“It’s 15 years this year since the Winterbourne View scandal. Since then, similar things have happened in far too many other places. We need to work harder than ever to respect the rights of the people we’re working with and help them to be as free as possible.”
The Association of Directors of Adult Social Services
“We are optimistic about the ruling but aware there still needs to be appropriate safeguarding available – and we look forward to supporting the Department for Health and Social Care as they do the important work of developing new guidance for adult social care staff to take this forward.”