Cheshire West resources

I have pulled together here freely available resources on the implications of the decision in Cheshire West, including both official guidance and commentary.   I will add to this for as long as it appears to be useful – any suggestions gratefully received.   Remember that the most recent news will always be covered in the 39 Essex Chambers Mental Capacity Report, and coverage of all relevant cases concerning deprivation of liberty can be found in our case-law database.

Law Commission Mental Capacity and Deprivation of Liberty report

The report and draft Bill, proposing amendments to the body of the MCA 2005 to strengthen the requirement to place the individual at the heart of the decision-making process and the replacement of DOLS by the Liberty Protection Safeguards, was published on 13 March 2017.  A webcast of a briefing I have done on the report is available here. A special report from the 39 Essex Chambers Mental Capacity Report team can be found here.

The Government published its response to the Law Commission’s Mental Capacity and Deprivation of Liberty report on 14 March.  The headline is that the Government “agree[s] in principle that the current DoLS system should be replaced as a matter of pressing urgency,” and that it will legislate in due course.  Before the introduction of any new system, the Government has said that it will “need to consider carefully the detail of these proposals carefully and ensure that the design of the new system fits with the conditions of the sector, taking into account the future direction of health and social care.”  In its detailed response, the Government has accepted, or accepted in principle, all of the recommendations except (1) the recommendation relating to a statutory codification of capacity law in relation to children; and (2) areas which it has left for the independent Mental Health Act review to consider.  A summary of and comment upon the response from Ben Troke of Browne Jacobson can be found here.

Mental Capacity (Amendment) Bill

A Government Bill, introducing some, but not all, of the Law Commission’s recommendations, was introduced into Parliament on 3 July.   The Bill can be found here, where you can also see the Explanatory Notes and track its progress through Parliament; a short summary of the headline points can be found here.

Official guidance

Department of Health consolidated Guidance on the obligations of local authorities following the decision in Cheshire West (22 October 2015).  NOTE that the Court of Appeal held in R(LF) v HM Senior Coroner for Inner London [2017] EWCA Civ 31 that, in general, patients being provided with life-saving medical treatment in the intensive or acute setting are not to be considered to be deprived of their liberty, and this guidance should be read subject to that decision.

Department of Health Guidance on reducing the use of restrictive practices inter alia in health care settings issued by Department of Health (April 2014)

CQC briefing for providers in health and social care settings (updated late April 2014).  The CQC has also issued guidance in relation to Intensive Care Units following the LF decision (August 2018)

A guidance note from the Scottish Mental Welfare Commission on the implications of the decision, of note in no little part for its acknowledgment that the decision of the Supreme Court represents an authoritative interpretation of Article 5 ECHR for purposes of the law in Scotland (September 2014)

Adass Advice Note: (Updated) Guidance for Local Authorities in the light of the Supreme Court decisions on deprivation of liberty (November 2014).

ADASS’s new forms and guidance for applications for DOLS authorisations (April 2015).

Summary guidance from the Faculty of Intensive Care Medicine/Intensive Care Society as to the implications of the decision of the Court of Appeal held in R(LF) v HM Senior Coroner for Inner London [2017] EWCA Civ 31, to the effect that that, in general, patients being provided with life-saving medical treatment in the intensive or acute setting are not to be considered to be deprived of their liberty, and this guidance should be read subject to that decision (February 2017)

Chief Coroner’s Guidance on DOLS (December 2014, revised January 2016, but not amended to take account of the decision in LF).  Further guidance was issued in March 2017 to take account of the decision in LF and the changes introduced by the Policing and Crime Act 2017 to remove deaths under DOLS and under so-called Re X orders from the definition of state detention with effect from 3 April 2017 (March 2017)

ADASS’s November 2009 Protocol for Inter Authority Management of Deprivation of Liberty Safeguards also remains relevant here (although note that it does not take into account the changes brought in 2013 with the abolition of PCTs).

The Guidance (which I co-wrote and edited) commissioned from the Law Society by the Department of Health entitled: Deprivation of Liberty: A Practical Guide. This link also includes a podcast that I did highlighting the key messages in the Guidance. A hard copy of the guidance (with an updated case-law section and other relevant resources) is available from the Law Society (April 2015).   NOTE that the Court of Appeal held in R(LF) v HM Senior Coroner for Inner London [2017] EWCA Civ 31 that, in general, patients being provided with life-saving medical treatment in the intensive or acute setting are not to be considered to be deprived of their liberty, and this guidance should be read subject to that decision.

Commentary: guidance notes

Deprivation of liberty after Cheshire West: this guidance note, written with my fellow Mental Capacity Report editors, sets out the key questions for social workers and medical practitioners to ask following the judgment of the Supreme Court in Cheshire West (March 2014).

A guide produced by Sophy Miles on the implications of Cheshire West for mental health and mental capacity lawyers (March 2014).

An easy-read presentation for care homes by Gary Underhill on the Cheshire West case (May 2014)

‘What does continuous supervision and control and not free to leave mean?’: a thought-provoking and useful attempt to think through these two key questions in a paper prepared by Richard Rook for the Care Providers Alliance (May 2014)

Deprivation of liberty in the hospital setting: an updated guidance note, written with my fellow Mental Capacity Report editors, on when a deprivation of liberty is likely to arise in the hospital settings, and how it can be authorised (February 2018).

Commentary: webinars

P, P and Q: The key to the gilded cage – a video featuring Jenni Richards QC, Fenella Morris QC, Nicola Greaney and Ben Tankel, all of 39 Essex Chambers (March 2014)

P v Cheshire West and Chester Council – Supreme Court decision – March 2014 – a webinar produced by Ben Troke of Browne Jacobson (March 2014)

Commentary: practice-focused

The Browne Jacobson MCA/DOL resources hub, which includes useful webinars, videos and articles on Cheshire West and deprivation of liberty more generally.  There is also a specific webinar on the LF decision available here.

Mental Capacity Act – Update following P v Cheshire West  and P & Q v Surrey County Council cases: an excellent paper focusing on the impact of the decision for psychiatrists by Julie Chalmers, Specialist Advisor in Mental Health Law to the Royal College of Psychiatrists.

Commentary: broader perspectives

The Cheshire West Mental Capacity Law Newsletter special issue (March 2014)

The Acid Test: blog post by Lucy Series (20 March 2014)

Psychiatry and the Law: An enduring interest for Lord Rodger”: The Lord Rodger Memorial Lecture 2014, a speech given by Lady Hale in October 2014, which includes a very interesting discussion of the judgment.

Post-Cheshire West applications to the Court of Protection

Re X process

The 39 Essex Chambers summary of the NRA decision (September 2015) in which Charles J identified amendments required to the Re X process – but held that P did not, in fact, have to be a party to non-contentious proceedings.

The 39 Essex Chambers summary of the JM decision (March 2016) in which Charles J provided that cases in which no suitable family member or friend could be identified to act as representative for P should be stayed if there no funding available for an IMCA to act or for any person to act as their litigation friend if joined.

The 39 Essex Chambers summary of the VE decision (March 2016) in which Charles J outlined the role of “Rule 3A representative” for family members and friends in applications for authorisation of deprivation of liberty in the Re X process.

The 39 Essex Chambers guide to applications for judicial authorisations of deprivation of liberty (updated in December 2017 to take account of the fact that the introduction of the Court of Protection Rules 2017 has led to renumbering of rules and forms).

Now of historical interest alone:

    • The first “judgment” of the President of the Court of Protection setting out the outlines of the ‘streamlined’ process.  The second “judgment” of the President of the Court of Protection setting out reasons for his decision upon certain key points relating to the ‘streamlined process.’
  • The 39 Essex Chambers commentary on the Court of Appeal judgment ([2015] EWCA Civ 599) making clear that the President did not have jurisdiction to give the “judgments,” and expressing the very strong view that the person concerned must (as the Rules stood in June 2015) be a party to proceedings for authorisation of deprivation of liberty.
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