Cheshire West 2 and the subjective element

Law and practice Mental Capacity Act
1

Continuing the discussion from Cheshire West logic:

Here’s a topic to discuss this.

The AGNI’s argument was that the subjective element of deprivation of liberty – “lack of valid consent” – has an autonomous ECHR meaning, and so you can give valid consent to confinement despite lacking the relevant MCA capacity. This consent would mean there is no Article 5 deprivation of liberty. The charities argued that the two are effectively the same (which is what we had all assumed before thinking about it).

2

The following article Revisiting Cheshire West by Dr Lucy Series has some interesting arguments in favour of revisiting our understanding of ‘valid consent’ but ‘provided there are adequate safeguards’ (begins halfway through the article).

3

I haven’t read academic papers or books for over a decade, so might be failing to credit others, but I think she was the brains behind the idea, though her motivations were different. I believe her whole book (Lucy Series, Deprivation of Liberty in the Shadows of the Institution (Bristol University Press, 2022) - Mental Health Law Online) was included in the Supreme Court bundle.

4

Another similar, but personal to the authors, take on valid consent can be found here Reflections of a freelance mental capacity consultant on the Supreme Court case about deprivation of liberty – Promoting Open Justice in the Court of Protection.

5

Dr Series discusses that book here - Deprivation of liberty in the shadows of the institution – in discussion with Dr Lucy Series – Mental Capacity Law and Policy.