How would you feel if someone accompanied you to the toilet, wouldn’t let you leave your home on your own or CCTV followed you everywhere you went? If someone is “under continuous supervision and control and is not free to leave" and they lack the ability to consent to this, they are being deprived of their liberty.
Lady Hale’s now famous words “A gilded cage is still a cage” formed part of the 2014 judgment for P v Cheshire West. The impact of that case was a new appraisal as to what counts as a deprivation of liberty and therefore for whom a ‘deprivation of liberty’ (DOL) order was required to be in place.
Following the judgment care providers struggled desperately to re-assess their service users and determine who they may be depriving of liberty. This led to floodgates being opened as applications for DOLs rose ten-fold in order to validate the care arrangements in place. Standard applications are meant to be dealt with within 21 days and urgent applications within 7 days. Understandably, when providers realised that many of their residents were already being deprived of liberty, the majority of the applications were urgent. Stories abounded of months passing with no reply to the application and the back-log created by this has still not been cleared.
This has left many providers stuck in a legal limbo, whereby in order to provide the care that an individual needs the measures put in place may have the effect of depriving them of their liberty. But, until a DOL is in place, this is unlawful. Clearly that’s unacceptable, but there doesn’t appear to be an alternative.
Now it appears that the local authorities are so desperate for funding in order to address this problem that they have decided to issue legal proceedings against central government in order to seek resources to address this new burden.
If recourse to legal proceedings is how the multiple pressures on the care industry are going to be determined, I think we can expect to see more legal proceedings to come. No doubt the outcome of this case will be closely watched around the country.
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The local authorities say government funding for DoLS has been maintained at around £34m a year. The Local Government Association has argued at least an additional £172m a year is needed to meet the costs of the Cheshire West judgment in relation to DoLS.