There has been a flurry of important new case law, both on the Court of Protection streamlined process for authorisation of deprivation of liberty in the community, and on the application of the Cheshire West acid test in cases involving a child, a case in a community setting, and (for the first time) a case in intensive care.

1. @BJhealthlaw

2. @BJhealthlaw
applying the Cheshire West test
19 November 2015

3. @BJhealthlaw
• the landscape
– Law commission - 2 November 2015
– DH guidance - 22 October 2015
• DoL for children – A local authority v D –
28 July 2015

4. @BJhealthlaw
• DoL in the community – KW v Rochdale
(Court of Appeal) – 20 October 2015
• DoL in ICU – LF v Coroner of Inner South
London – 29 October 2015
• q&a

5. @BJhealthlaw
• closed 2 November 2015
• headlines
– reform urgently needed (law or resources?)
– resources
– nuanced and proportionate approach /
patchwork
– role of AMCP
– hospital scheme as an anomaly

6. @BJhealthlaw
• letter from Niall Fry published - 22
October 2015
• covers news and guidance
• including ICU (now overtaken by events)!
• link - http://www.scie.org.uk/mca-
directory/files/dh-letter-to-mca-dols-
leads-oct-2015-final.pdf

7. @BJhealthlaw
• A local authority v D (Keehan J, 28 July
2015)
• AB – a 14yo with moderate / severe LD and
ADHD
• DoL at children’s home – “staff must be
aware where he is at all times”

8. @BJhealthlaw
• ‘Cheshire West’ criteria must be rigorously
applied in every case
• children not in care – apparent DoL may be
no DoL where it falls within “zone of
parental responsibility” – depends on age
/ needs (relative normality?)

9. @BJhealthlaw
• children in care – extremely unlikely
parent could consent, so LA cannot either
• only option (if not CA s25) is use of
‘inherent jurisdiction’

10. The ‘Rochdale saga’
• Rochdale MBC v KW
• 18 November 2014 – Mostyn J
• Katherine - in her own home – is she DOL?
• if so – would require periodic review by
the Court and “every pound spent on
such reviews is a pound less for other
vitally necessary projects”

11. @BJhealthlaw
• aged 52
• “severely mentally incapacitated”
• “trapped in the past” and under
delusions is wandering, searching for her
3 young children

12. @BJhealthlaw
• now - at her own home “with 24/7
support” – “if she tries to wander off she
will be brought back”
• “just ambulant” using a wheeled frame
• both sides’ lawyers said she was DoL
• Judge disagreed

13. @BJhealthlaw
• ‘free to leave’ means removing herself to
live somewhere else
• “ambulatory function is poor and
deteriorating”
• “if she becomes house-bound or bed-
ridden it must follow that her
deprivation of liberty just dissolves”

14. @BJhealthlaw
• “…she does not have the physical or
mental ability to exercise that freedom”
• “the matter should be reconsidered by
the Supreme Court”

15. @BJhealthlaw
“Imagine a man in hospital in a coma.
Imagine that such a man has no
relations demanding to take him away.
Literally, he is not "free to leave".
Literally, he is under continuous
supervision. Is he in a situation of
deprivation of liberty? Surely not.”

16. @BJhealthlaw
• 30 January 2015 - Court of Appeal
approved (without a hearing) a consent
order allowing appeal
• 13 March 2015 – Mostyn J disagreed with
CoA, order was ambiguous, still says it’s
no DoL, and insists (if he is wrong) that
CoA should give reasons

17. @BJhealthlaw
Definition of DoL has been
“… settled relatively recently by the
Supreme Court. [Mostyn J’s] analysis was,
and could be, of no legal effect. It was
irrelevant.”

18. @BJhealthlaw
“This litigation has an unfortunate history.
The judge has twice made decisions which
have been appealed [successfully]. This has
lead to considerable unnecessary costs to
the public purse and unnecessary use of
court time”

19. @BJhealthlaw
“we regret to say that it is the judge’s
tenacious adherence to his jurisprudential
analysis leading to his conclusion that
Cheshire West was wrongly decided that has
been at the root of this”

20. @BJhealthlaw
“… the judge’s passionate view that the
legal analysis of the majority in Cheshire
West is wrong is in danger of distorting his
approach to these cases…”

21. @BJhealthlaw
• Mostyn J (in KW (2), 13 March 2015) – “…
the law is now in a state of serious
confusion”
• “Even if Cheshire West is wrong, there is
nothing confusing about it” – Lord Dyson

22. “It may seem that way from the lofty heights of the Court of
Appeal; and of course the literal words of the Supreme Court's
test are perfectly easy to understand. But for we hoplites who
have to administer it at first instance the scope and ramifications
of the test are, with respect, extremely confusing.”
Mostyn J

23. @BJhealthlaw
• Divisional Court, 29 October 2015
• Maria, 45, down’s syndrome
• admitted to hospital with pneumonia 19
November 2013
• deteriorated and moved to ICU 2/3
December 2013
• died 7 December 2013

24. @BJhealthlaw
• plainly “UCS+C+NFTL” but DoLS not used
• coroner’s inquest but started without
jury
• JR of that decision – jury is mandatory if
not natural death and D was “in state
detention”

25. • coroner was right – Maria was neither ‘in
state detention’ nor DoL
• context of Cheshire West was long term
care and residence – living arrangements
• it should not be ‘mechanistically’ applied
in cases of (undisputed) medical
treatment – with involvement of family
• intention was to discharge her as soon as
possible

26. @BJhealthlaw
• coroner was right – neither in state
detention nor DoL
• ‘state detention’ for CJA means
‘compulsorily detained’ (makes more
sense if overriding a capable decision?)
• no dispute over treatment needs,
decisions based on best interests,
disorder / treatment affects her same as
anyone else

27. @BJhealthlaw
• the ‘mischief’ and ‘policy’ behind
Cheshire West does not justify test
“being applied without modification to
the different situation of a patient who
is in hospital for care and treatment of
physical disorders”

28. @BJhealthlaw
• there is little need for additional
safeguards where P has “a devoted
family member who is actively involved
and motivated by the best interests…
leading to accord with the treating
team”

29. @BJhealthlaw
• “Wholly artificial to say that she was
compulsorily detained…” (Gross LJ at 86
and Charles J at 130)
• nonsense to hypothesise a theoretical
attempt to remove her (cf the Law
Society Guidance)

30. @BJhealthlaw
• “… the reality was that Maria remained
in the ICU not because she had been
detained or deprived of her liberty but
because for pressing medical reasons and
treatment she was unable to be
elsewhere”
Gross LJ and Charles J

31. • patients in ICU are not DoL
• by extension – reasoning applies to acute
medical treatment for physical health,
and hospices (where consensus between
family and clinicians)?
• revision of Chief Coroner’s guidance?
• welcome for acute providers and for DoLS
teams, and coroners

32. @BJhealthlaw
• only oblique answer to Art 5 in ICU, still
more so for other acute medical settings
• leave to appeal to Court of Appeal
• 2 contradictory judgments, and some
more Qs than answers

33. – is the distinction between treatment for
physical / mental health appropriate /
feasible?
– Charles J – in cases of medical treatment
for physical disorder, is there a difference
between Ps with / without previous
mental incapacity
– reasoning which is more resonant with
CoA in Cheshire West than the Supreme
Court

34. @BJhealthlaw
• case law not very clear yet (and what
about Re P and FG?)
• blurred lines in practice
• risks of offending against all the Supreme
Court Cheshire West exclusions

35. @BJhealthlaw
• fundamentally – article 5 requires
protection if DoL for more than a
“negligible period of time” – hard to say
that this only kicks in at ‘living
arrangements’….

36. @BJhealthlaw
• battle is moving on from definition of DoL
to how / where the definition we have
should be applied
• DoL clearly in long term care / living
arrangements in institution – per Cheshire
West

37. @BJhealthlaw
• some doubt in intensive care (and maybe
by extension, hospices / acute medical
ward?) – but caution…
• DoL in the community – ironically maybe
now easier to say clearly DoL per
Cheshire West, and need to take these to
COP, per Re X / NRA

39. @BJhealthlaw
Please get in touch if you have any questions
or wish to discuss the topics we’ve covered
further…
ben.troke@brownejacobson.com| 0115 976 6263