The AGNI’s reference wasn’t about the objective element – “confinement to a certain limited place for a not negligible length of time” – but the DHSC focussed on it. I thought this was odd, as the acid test is probably narrower than what they called the “multi-factorial” approach (the actual ECHR approach) – the thing about Cheshire West that opened the floodgates, I think, was the list of things that were not to be considered relevant, especially purpose and normality (though I suppose it’s all intertwined as by saying only two key factors are relevant you’re discounting all the rest).
There was also some argument about how subjective factors could be relevant to the objective element.
I had a read through the AGNI’s and DHSC written cases this morning and reread Cheshire West (Cheshire West and Chester Council v P [2014] UKSC 19), in particular the views of Lord Carnwath and Lord Hodge at paras 88 to 104. As a lay person, I was really surprised that neither AGNI nor the DHSC in the current case focused on the ‘normality’ factor, especially when any potential DoL was taking place in a persons own home or a family home, as it seemed to me like the ‘easiest’ win in terms of potentially reigning in the scope of Cheshire West. For example in Cheshire West at para 97 when reflecting on ‘Stanev’, Lord Carnwath and Hodge state “It is notable that all the cases cited in the court’s review related to people living in institutions of some kind, not in ordinary homes”.
Now I personally wouldn’t include Supported Living placements in this criteria, which Lord Carnwath and Hodge seem to do, as I have personally never come across a supported living service that could be described really as a ‘home’, as they are ultimately CQC regulated services, they are often ‘group’ settings (often with little/no choice of who you live with), and meet in my opinion the description of a ‘social care institution’ and are therefore different to a persons own or a family home.
My view is that if DoL and any associated safeguards (with a more streamlined approach to those safeguards as proposed with LPS) only focussed on institutional settings (inc. supported living and extra care) and hospitals, DoL would be manageable on the ground. I think most frontline social care professionals who have anything negative to say about Cheshire West, relate to situations where we are asked to consider DoL in purely domestic/home settings.
I wonder whether in history we “shall be likened unto a foolish man, which built his house upon the sand” for relying completely on ECHR jurisprudence rather than our own statute. A statute could have set out different circumstances and the relevant procedural safeguards.
Also the whole approach of pretending that detention under DOLS is so different to detention under the MHA that you can detain first and ask questions later seems to be part of the problem. But maybe that’s yet another topic!