In this webinar Ben Troke looks at: • The impact of Cheshire West – the streamlined COP process, Re X appeal(s) • The interpretation of Cheshire West – Rochdale MBC v KW and appeal • Capacity and sex (and Cheshire West) – Tower Hamlets LBC v TB • What’s next

3. • the impact of Cheshire West
– the streamlined COP process
– Re X appeal(s)
• the interpretation of Cheshire West
– Rochdale MBC v KW and appeal
• capacity and sex (and Cheshire West)
– Tower Hamlets LBC v TB
• conclusion – what next?!

4. • 19 March 2014
• 3 individuals MiG, MeG and P all DoLed
(appropriately) by care package by LAs
• applying the ‘acid test’
‐ lacking capacity to consent to package
imputable to the state
‐ under continuous supervision and control
and not free to leave
‐ disability / compliance / quality of care
not relevant to whether it is a DOL

5. • 10 fold increase in referrals to DOLS
• uncertainty and anxiety
• tens of thousands of people in care
packages in the community likely to meet
the ‘acid test’ for whom application must
be made to the COP

6. • a ‘streamlined’ court process
• new DOLS forms – prepared by ADASS
(12.1.15)
• guidance from the chief coroner (5.12.14)
– DOLS (once authorised) = state detention
for CJA 2009 s1
– must be an inquest

7. • Rochdale MBC v KW
• 18 November 2014 – Mostyn J
• Katherine (KW, 52) 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” (para 1)

8. • “severely mentally incapacitated”
• “trapped in the past” and under delusions
is wandering, searching for her 3 young
children
• June 2013 to April 2014 in a care home –
“on any view she suffered an unlawful
deprivation of liberty…” – “modest
compensation and a written apology”

9. • 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

10. • ‘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”

11. “It is my primary factual finding that in Katherine's case the
second part of the acid test is not satisfied. She is not in any
realistic way being constrained from exercising the freedom to
leave, in the required sense, for the essential reason that she
does not have the physical or mental ability to exercise that
freedom”

12. • “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.”

13. • “What is ‘liberty’ for Katherine?”
• emphasis that this was in her own home
• if private arrangement = no DOL
• language (“care” not “detention”)
• resources and scale of impact

14. • P simply needs care to be taken of her by
others
• “for me it is simply impossible to see
how such protective measures can
linguistically be characterised as a
‘deprivation of liberty’”.

15. “…where a person, often elderly, who is both physically and
mentally disabled to a severe extent, is being looked after in
her own home, and where the arrangements happen to be
made, and paid for, by a local authority, rather than by the
person's own family and paid for from her own funds, or from
funds provided by members of her family, Article 5 is simply not
engaged”

16. • “the matter should be reconsidered by
the Supreme Court”
• Court of Appeal – 4/5 February 2015
• difficult to reconcile with Cheshire West
• treat the ‘coma’ analogy with caution

17. • Tower Hamlets LBC v TB 17.12.14, Mostyn J
• TB – 41yo, Bangladeshi lady, LD
• 18 years married, with domestic violence
• capacity / best interests for where to live
and contact with husband (and is it a DOL?)
• husband said culture and religion gave him
right to have sex and she has a “duty to
submit”

18. • capacity to have sex requires
understanding –
– mechanics of the act
– health risks involved (including pregnancy)
– the choice and that you can refuse
• TB lacked capacity for sex = therefore
any sex would be unlawful (MCA s27)

19. • best interests NOT to return home
• TB continuing in sheltered accommodation
- limited, supervised contact with husband
• “acid test is met”
‐ she will not be cared for at a place
which she understands to be her home
‐ she has the motor function to leave,
‐ she will be monitored 24/7 and would be
brought back

20. “Although I personally cannot see that her situation amounts to
state detention in any sense other than by reference to the
term of art devised by the majority in the Supreme Court, I
must loyally follow that decision.”

21. • TB will be DoL – so will need Court review
– 6/12ly (“no doubt at some considerable
expense to the public purse”)
• revisits KW – extra support should be
given to those with disabilities – “but to
characterise those measures as state
detention is to my mind unreal”
• Resource implications…

22. “Plainly all this will cost huge sums… which I would
respectfully suggest are better spent on the front
line rather than on lawyers.”

23. 17 November 2014
New COPDOL10 form, practice
guidance and draft Order
Reflecting the “Re X” directions by
Munby LJ
Paper based
Care plan vital
P need not be a party

24. • LJ Munby’s decisions that–
– P need not be a party to these
proceedings
– if P is a party, a litigation friend can act
without lawyers
– predominantly a paper based process,
without oral hearings
• will be heard by Court of Appeal 17-19
February 2015

25. • “scoping” still ongoing
• huge resource issues getting cases to the
starting line
• where to begin?!

26. • “the weaker authorities are still sitting
back and assuming that a new system will
protect them” - HHJ Cardinal
• new law is 4-5 years away at least
• potential liabilities – and the potential
impact of judicial discretion

27. • fixed fee
– clinic / Q&A
– strategic advice on priorities and
liabilities
– training / policy reviews
• fixed fee
– preparation and submission of applications
to COP for authorisation of DOL in the
community (in development)
• please contact us for details

28. • Court of Appeal (KW, 4 February 2015)
• no liberty if you cannot walk?
• man in coma (ICU?)
• role of state / family home / liberty?
• Court of Appeal (Re X, 17 February 2015)
• The “streamlined process” - P need not be a
party, litigation friends can act without lawyers,
and emphasis on paper process?
• Law Commission consultation – Summer 2015

29. We hope you found it useful.
Please get in touch if you have any questions or wish to
discuss the topics we covered further…
ben.troke@brownejacobson.com |07970 615452