Has the Supreme Court
strengthened human rights for those lacking capacity? Deprivation of liberty
after the UKSC’s decision in Cheshire
West and MIG and MEG
The deprivation of liberty safeguards (DOLS) introduced into the Mental Capacity Act 2005 were intended to protect the human rights of those placed in residential care by the state but who could not consent to those arrangements through lack of capacity. However, no definition of what amounts to a deprivation of liberty was included and this led to uncertainty.
The Supreme Court’s decision in P v Cheshire West and Chester Council and P and Q v Surrey County Council  UKSC 19,  COPLR (forthcoming)
has brought some clarity to the legal concept of deprivation of liberty. This article provides a brief analysis of the judgments (including the dissenting judgments). It sets out the guidance given by the court on:
- The application of Art 5 of the European Convention to those lacking capacity.
- The test now to be applied when determining deprivation of liberty.
- The factors that are not relevant.
- The need for and nature of periodic reviews.
- Some of the implications and uncertainties which are likely to follow.
The article aims to provide a handy guide of the main issues to consider when judging whether the arrangements proposed or made for those lacking capacity may be caught by the provisions of Art 5 and the DOLS.
Click on the link below to read the supplement to Urgent Applications in the Court of Protection
Honour Nazreen Pearce and District Judge Sue Jackson.
Click to download the supplement: UACP_Supplement.pdf
This is a free supplement to Chapter 10 (Deprivation of Liberty), providing detailed analysis of the implications of the Supreme Court's important ruling in Cheshire West and MIG & MEG