Briefing following the Supreme Court Judgement
- P v Cheshire West and Chester Council
- P & Q, the Official Solicitor v Surrey County Council 2014 UKSC
On 19 March 2014 the Supreme Court ruled unanimously that P, a profoundly disabled man was deprived of his liberty by virtue of the complete and effective control exercised over his life by those looking after him. The Supreme Court rejected the decision and the factors that were introduced when the case was heard by the Appeal Court and re-affirmed the original decision that had been previously reached in the Court of Protection.
In reaching this decision the Supreme Court identified that to determine whether a person (without the mental capacity to consent to the arrangements) is being deprived of their liberty, the following 'acid test' should be applied:
Is the person subject to continuous supervision and control?
All of these factors are necessary. You should seek legal advice if intensive levels of support are being provided to any person as part of a package of care or treatment.
Is the person free to leave?
The focus is not on the person’s ability to express a desire to leave, but on what those with control over their care arrangements would do if they sought to leave.
In all cases, the following are not relevant to the application of the test:
- The person’s compliance or lack of objection
- The relative normality of the placement (whatever the comparison made); and
- The reason or purpose behind a particular placement.
This ruling has increased the number of customers who now fall within the scope of what constitutes a deprivation of liberty and where this occurs authorisation is required.
Where this test is applicable and the customer is in:
- a care home or hospital, authorisation is able to be provided through the Deprivation of Liberty Safeguards – DOLS.
- an environment other than a care home or hospital, then an application would need to be made by the customer’s allocated worker through the Court of Protection – via Suffolk Legal.
Guidance regarding the process for making a DOLS referral (where the customer is in a care home or hospital) is provided on the DOLS page.
Further details and guidance regarding this ruling from the Supreme Court
- Link to the judgement (PDF, 325KB)
- Link to the press release (PDF, 135KB)
- CQC guidance briefing (version 2) for providers on the Deprivation of Liberty Safeguards 16 April 2014 (PDF, 48KB)
- Department of Health Guidance – Deprivation of Liberty Safeguards, 28 March 2014 (PDF, 315KB)
- ADASS advice note - Nov. 2014
- ADASS guidance for local authorities in the light of the Supreme Court decisions on deprivation of liberty April 2014
- Mills and Reeve briefing on the Supreme Court Joint Appeals of Cheshire West and P & Q 19 March 2014 (PDF, 125KB)
- 39 Essex Chambers – Deprivation of liberty in the hospital setting
- 39 Essex Chambers – Deprivation of liberty after Cheshire West: key questions for social workers and medical practitioners. March 2014 (PDF, 396KB)
- National Housing Federation and the Housing Learning and Improvement Network Briefing for social housing providers on the legal framework for deprivation of liberty
- Department of Health Guidance - Response to the Supreme Court Judgment/DOLS, 22 October 2015 (PDF, 395KB)
Deprivation of liberty – In community settings
The Court of Protection have advised that from 11 January 2018; the COP DOL Form 10 has been replaced by the COP DOL Form 11 – which is to be used for deprivation of liberty applications in community settings. This new form is very similar to the COP DOL Form 10. One significant change is that the Rule 3A Representative is changed to the Rule 1.2 Representative – which is due to a change in the Court of Protection Rules, although the role of the Representative remains the same.
The new COP Form 11, has been partially completed by Suffolk Legal along with the amended COP 24 Form for the Rule 1.2 Representative’s statement, below.
- Guidance: Deprivation of Liberty - in community settings (PDF, 248KB)
- COP 3 form- Assessment of capacity (PDF, 362KB)
- COP Form 24 for Rule 1.2 Representative (on Initial Application) (PDF, 257KB)
- COP 24 for Rule 1.2 Representative (on Renewal) (PDF, 257KB)
- Approved judgement of Mr Justice Charles (PDF, 263KB)
- Cornerstone Barristers - All change in the Court of Protection (PDF, 156KB)
- Deprivation of liberty: Key Questions for Social Workers and Medical Practitioners (PDF, 397KB)