10 years since Cheshire West, the House of Lords scrutinised the MCA 2005 in action, and this website started…

March 2024 contains three ten year anniversaries.   One is national – indeed international – significance; one is of national significance, and one is of personal significance.

The first is that it will on 19 March be 10 years since the Supreme Court handed down its decision in Cheshire West, giving a ‘maximalist’ interpretation of the concept of deprivation of liberty.[1]  In short, if you have complex care needs[2] there is a very strong chance that, in law, you will be seen to be deprived of your liberty.  The complexity of your care needs is likely to mean that the arrangements for your care (however benign) will mean that you are not able to leave where you are being cared for, and you will be under supervision and control; the state will either directly be involved or will (or should) be aware of the confinement, and you may well lack capacity to your confinement.  If you lack that capacity, then you will be deprived of your liberty even if it appears that it accords with your known will and preferences (for an alternative take, see my discussion paper here). That we have yet to implement legislation which allows for appropriate scrutiny of all such situations could be put down to a whole host of factors, but it leaves all those who care about acting lawfully in this context in a deeply problematic situation. If you are free on 19 March, and want to think more about the past, present and future of Cheshire West, you may wish to tune into this webinar coordinated by Ben Troke of Weightmans, featuring an expert panel and a walk on appearance by me at the end.

The second is that on 13 March, it will be 10 years since the House of Lords published its post-legislative scrutiny report on the Mental Capacity Act 2005.  In headline terms, it recognised the potential for the MCA 2005 to have been transformative, but identified that that transformation was stalled.  How much further we might have come since then is a matter I will be discussing with a special guest in my shed in a chat which will appear on 13 March.

The third is that it was 10 years ago on 1 March that I started the Mental Capacity Law and Policy website.  It has evolved somewhat since it started, most obviously since the pandemic forced me into the shed on a near permanent basis, but with the silver lining of accidentally inventing the shedinar series, both of short videos on key topics and of discussions with people with interesting and relevant things to say about capacity – which now runs to well over 50.  I am very grateful both to them for their insights, and to everyone who has contributed in other ways to the website by commenting on posts, by emailing me about things they have been bothered about in consequence, or by sending me things that I might want to cover.  I am certainly no nearer thinking that I have the right answers to how to resolve the dilemmas that exist in the mental capacity zone than I was in 2014, but as the website hits 10, I go forward in the hope that I never stop learning.

[1] And an interpretation to which jurisdictions outside the United Kingdom as far afield as New Zealand have made reference in discussions about the issue.

[2] And, since Re D in 2017, if you are aged 16 and above.

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