The number of deprivation of liberty cases dealt with by local authorities has increased ten times since a landmark Supreme Court decision last year.
If someone is unable to make decisions about their own care and living arrangements, as a result of illness or disability, other people can make such decisions for them. Sometimes, such decisions can infringe upon a person’s Article 5 right to “liberty and security of person” under the European Convention on Human Rights. When this occurs, it is known as a “deprivation of liberty”. In order to address this issue, certain safeguards were added to the Mental Capacity Act. These include a requirement that the situation is regularly reviewed and that the affected person has a representative who can challenge the deprivation on their behalf.
If a care home or similar organisation believes that a deprivation of liberty cannot be avoided, they must apply for assessment and authorisation of the situation by the courts.
However, last year the Supreme Court ruled on the so called ‘Cheshire West case’. In this case, a previous decision by President of the Family Division Sir James Munby was overturned. He had ruled that the living conditions of three people with mental disabilities were an “inevitable” consequence of their care. The Supreme Court disagreed and said the conditions amounted to a deprivation of the three’s liberty.
That decision effectively lowered the threshold for what could be classed as a deprivation of liberty. In reaction to the Supreme Court’s ruling, Sir James warned that applications for assessments would dramatically increase. With more stringent criteria to consider, the living arrangements for greater numbers of people now require authorisation.
Figures from 116 local authorities in England appear to support Sir James’ prediction. In the year prior to Cheshire West, there were about 10,900 applications for safeguards. In the year since the decision, local authorities have received 113,300 applications.
The tenfold increase has created a backlog of applications which local authorities’ are struggling to deal with. Recent figures reveal that 54 per cent of applications had either been withdrawn or had not been properly signed off. In the previous year, this was only true in three per cent of applications.