Alexander Ruck Keene gives a talk at Browne Jacobson's elderly care conference 2015.

1. April 2015
Alex Ruck Keene
Barrister, 39 Essex Chambers and Honorary
Research Lecturer at the University of
Manchester
alex.ruckkeene@39essex.com
Deprivation of liberty -
one year (and a bit) on

2. Cheshire West: the answers
• Liberty means the same for all
• It is possible and right to identify a universal test
(where the majority and the minority part company)
• The ‘acid test’: continuous (or complete)
supervision and control and a lack of freedom to
leave
• Irrelevant are
– compliance or lack of objection;
– the relative normality of the placement (whatever the
comparison made); and
– the reason or purpose behind a particular placement

3. Cheshire West: what did the Supreme Court actually
want?
“[Those in the position of P, MIG and MEG] need a periodic independent
check on whether the arrangements made for them are in their best
interests. Such checks need not be as elaborate as those currently
provided for in the Court of Protection or in the Deprivation of Liberty
safeguards (which could in due course be simplified and extended to
placements outside hospitals and care homes). Nor should we regard the
need for such checks as in any way stigmatising of them or of their
carers. Rather, they are a recognition of their equal dignity and status as
human beings like the rest of us.”
Paragraph 57, per Lady Hale
(is this the right answer to the wrong question?)

4. The road ahead
• No immediate legislation in order to amend Schedule
A1
• The Law Commission now asked to review DOLS
regime (not just supported living). Public consultation
on provisional proposals during the summer of 2015;
final report and draft Bill will be published in 2017
• DH commissioned guidance from the Law Society as to
what a deprivation of liberty looks like now – March
2015

5. Cheshire West: outstanding questions
• A test of universal application?
• Continuous (or complete) supervision and control?
• Freedom to leave?
• Non-negligible period(s) of time
• The place of ‘advance consent’
• ‘Private’ deprivations of liberty and the positive obligations of
the state (W City Council v Mrs L [2015] EWCOP 20)

6. Re X
• Re X (Deprivation of Liberty) [2014] EWCOP 25 and [2014] EWCOP
37
• The process for judicial authorisation of deprivation of liberty
• The ‘irreducible minimum’ for compliance with Article 5(1)(e) ECHR
• A streamlined, paper-based process where P will not necessarily be a
party
• New forms: COPDOL10, new Practice Direction (PD10AA) and model
order
• Court of Appeal heard appeal against the decision on 17 and 18
February 2015 – decision awaited. In the interim, keep using the
process

7. Keeping yourself up-to-date
39 Essex Chambers LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number 0C360005) with its registered
office at 39 Essex Street, London WC2R 3AT. 39 Essex Chambers‘ members provide legal and advocacy services as independent, self-employed barristers and no entity connected
with 39 Essex Chambers provides any legal services. 39 Essex Chambers (Services) Limited manages the administrative, operational and support functions of Chambers and is a
company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street, London WC2R 3AT
• http://www.39essex.com/resources-and-training/mental-capacity-law/
• www.mclap.org.uk
• www.mentalhealthlaw.co.uk
• www.courtofprotectionhandbook.com