Cheshire West 2 and the objective element

Law and practice Mental Capacity Act
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Continuing the discussion from Cheshire West logic:

Here’s another topic, to discuss this aspect.

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.

2

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.

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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!

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Another perspective on all this is The Mostyn Objection – Promoting Open Justice in the Court of Protection, which is Sir Nicholas Mostyn take on what Cheshire West got wrong. His closing argument in the article sums up his position as:

I therefore hope that these Supremes will “clarify” the current test to conform with the suggestion I have made in the appendix and which I repeat here:

An incapacitated adult will be deprived of liberty if, and only if:

  1. she is prevented from removing herself permanently in order to live where and with whom she chooses; and

  2. the dominant reason is the continuous supervision and control to which she is subjected, and not her underlying condition.

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I will read this with interest. Thanks. I’ve always been a big fan of Mostyn’s. That’s a minority opinion but far as I can tell there’s hardly a cigarette paper between him and Eldergill. Maybe I should have studied both more before saying that!

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Would be interested in your views as I think there are some problems with his arguments. For example, he states:

The next issue is about the meaning of “freedom to leave”. I do not agree that this should mean merely the ability to walk off in a certain direction, which is what most people have interpreted Lady Hale to mean. However, in Re D (A Child) [2017] EWCA Civ 1695 at [22] Sir James Munby P stated that he considered that Lady Hale was using it to mean “leaving in the sense of removing himself permanently in order to live where and with whom he chooses” and not merely “leaving for the purpose of some trip or outing.” If this is adopted, then that too will represent a major inroad into the present very wide reach of the test.

Might there be a few people who hold that view of ‘free to leave’, probably, but not the vast majority. I also think his ‘sleight of hand’ here is what he is really saying is a person who actually indicates a desire to ‘leave in the sense of removing themselves permanently in order to live where and with whom they choose’. Otherwise this would not, as he suggests, “represent a major inroad into the present very wide reach of the test”.

A personal analogy, by the point my grandmothers Alzheimer’s had got to a nature agree, along with underlying health complications, that she now needed to be cared for in a nursing home, she would have been unable to physically try to leave or either indicate a desire to leave (to be fair everyone of my grandparents had their final years in similar situations) - she lacked the capacity to consent to her confinement but she was compliant. The whole family did believe this was now in her best interests and that all other less restrictive options had been trialled, and failed. But, we all knew in our hearts that she would not want to die in that setting, none of my grandparents would have wanted to die in that type of setting, but it was now the only option. This was imposed on her, and my other grandparents, for the right reasons, however, i would suggest that after reading the ‘Mostyn Objection’ his analysis would lead you to conclude that she is not deprived of her liberty, and that none of them required any form of Safeguard. Without these safeguards we would have struggled to have got the person centred support my grandparents were entitled to from both the provider, LA and ICB.

The argument also ignores the affect of institutionalisation on an individual. When, often for all the right reasons, care/residence arrangements have always been always imposed on individual, for some, even before they reach the age of 18. The person is subject to daily controls, monitoring and restrictions, although light-touch (NB: I am not focussing on people subject to significant physical, chemical or mechanical restraint or significant 1-1 or more support - that is straight forward) and whilst afforded many opportunities to access the community in truth the person is and never will be afforded the chance to “leave in the sense of removing themselves permanently in order to live where and with whom they choose”. As someone who worked in supported living type settings, before there were the safeguards of Cheshire West, I can assure Sir Mostyn that it will lead to **“**an erosion of the rights of the mentally impaired”. Can the safeguards be made less bureaucratic yes, is this the right way to do it, no (in my opinion).

I do agree with his argument though when he explores this argument in settings that are not institutions, probably because i think the most valid argument for changing how we look at DoL is the ‘relative normality’ argument which would exclude the persons own and family home settings.

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Hi Russell your point Re

Is interesting because after listening to the two and a half days discussion/debate in the recent UKSC it definitely had the vibe of the judges seeing the Cheshire West judgment as anathema to them. I may be wrong with that feeling, but i know many other people who watched the whole hearing had a similar view.