Ben Troke delivers this session on the Cheshire West and Chester, looking at the background, judgment and implications going forward.

1. Back before Bournewood?
•Cheshire West and Chester
•implications
•conclusions & questions

2. 39 year old man
placed by LA in a group home – Z house
cerebral palsy, down’s syndrome
lacking capacity for care
and accommodation
use of restraint / body suit

3. “a Judge has a feel of a case the Court of Appeal cannot hope to replicate” and would only intervene if the Judge had done something “seriously wrong”
Court of Appeal found Judge had not done anything “seriously wrong” and so upheld Court costs decision
• 14 June 2011
• costs order against LA, despite prompt application, due to
- employee misleading the court under oath
- tampering with records “unquestionably an act intended to pervert the course of justice”
- LA named and shamed

4. “a Judge has a feel of a case the Court of Appeal cannot hope to replicate” and would only intervene if the Judge had done something “seriously wrong” Court of Appeal found Judge had not done anything “seriously wrong” and so upheld Court costs decision
• is it a DOL ?
• most normal life possible? BUT
• life completely under control of staff
• intrusive procedures

5. •judgment published 9 November 2011
•Lord Justice Munby (+ Lloyd and Pill LJJ)
•one question – is this a DOL?
•answer – No!

6. •‘purpose’ (aim / reasons / motive / good intentions)
•‘relative normality’ (or the ‘comparator’)

7. “Purpose”

8. P is not ‘the man on the Clapham Omnibus’
‘some adults are inherently restricted by their circumstances’
appropriate contrast is with ‘the kind of lives that people like [P] would normally expect to lead’

9. P’s life at Z house is
"the inevitable corollary of his
various disabilities"
and
“dictated by his
disabilities and difficulties”

10. the reality is that P was “living a life which is as normal as it can be for someone in his situation”, and therefore he was not being deprived of his liberty

11. Spectrum of situations
Family home
-unlikely to be a DoL
Institutional setting
Clarity ?

15. •

17. •no DOL = NO PROCESS
BUT
•wise to use CoP / DOLs process to review

18. “the court will be able to deal with most cases of this type fairly but at the same time simply and quickly… on the basis that there is no deprivation of liberty"

19. placed at care home by parents and LA
17½ year old girl, autism, ADHD, LD
“serious aggressive and self
harming behaviour”

21. “supervision that is supplied is understandably necessary to keep her safe and discharge the duty of care”
High Court
21 December 2010

22. “the restrictions were no more that what was reasonably required to protect RK from harming herself or others”
Court of Appeal
30 November 2011

24. •www.mentalhealthlaw.co.uk
•http://www.bailii.org
•www.communities.idea.gov.uk/welcome.do
•www.law-less-ordinary.com
•www.brownejacobson.com
•www.bjlegaltraining.com

25. Ben.troke@brownejacobson.com
0115 976 6263