Cheshire West – the DH speaks (and further practical guidance)

Department of Health Guidance

The Department of Health has this afternoon (28 March) issued guidance to health and social care organisations following the judgment in Cheshire West.  The guidance does not provide assistance as to the Department’s view as to what (e.g.) continuous supervision and control means, but sets out the actions that it expects relevant staff to take.   In the annex, the Department of Health notes – unsurprisingly – that it is “difficult to predict the number of individuals who lack capacity whose arrangements should be assessed in light of the Supreme Court judgment and the number of additional individuals for whom deprivation of liberty will need to be authorised.”  Importantly, though, the Department emphasises that professionals must remember that:

the deprivation of liberty authorisations and Court of Protection orders under the Deprivation of Liberty Safeguards (DoLS) in the Mental Capacity Act 2005 are rooted in the principles of that Act. DoLS exists to provide protection to individuals – to safeguard these individuals when a deprivation of liberty is an unavoidable part of a best interests care plan. Individuals who are identified as potentially deprived of their liberty must be considered on a case-by-case basis and all appropriate steps taken to remove the risk of a deprivation of liberty where possible. The emphasis should be on empowerment and enablement.”

Further practical guidance

To emphasise that I mean what I say when I say that I want this site to be of utility and that I’ll point to anything useful no matter who it is produced by, can I use this opportunity also to bring to your attention a very useful guidance document written by Stephen Evans of Hempsons Solicitors.upon the meaning and implications of the judgment (with NHS staff particularly in mind).  Update 3 April: the discussion in relation to children in the document is under review and will be updated in due course.


The next Mental Capacity Law Newsletter, due out on Tuesday, will be split into a number of newsletters covering different aspects of mental capacity law.  The first Court of Protection: Health, Welfare and DOLS newsletter will be dedicated to the Cheshire West decision, and will include responses from a range of different perspectives both inside and outside the legal bubble.  We are also very interested to learn from local authorities as to the practical impact of the decision on the ground so that we can report further upon this in the May issue.

Please feel free to discuss any of the points raised here, or in any of the multiple posts flying about, on this forum.

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