Claire and I have returned from two days at BABICM to report on a fantastic array of talks. Most notably, Ian Brownhill’s ‘hot off the press’ review of the Supreme Court’s reversal of the 2014 Cheshire West ruling. Armed with his emotional support pink lama (those who know, know) and having read the 80-page judgement released at 9.45am in time for his talk at 14.10pm, Ian left the auditorium shocked and dismayed at this landmark ruling.
The Cheshire West judgement held that the ‘acid test’ for deprivation of liberties was that the individual was subject to continuous supervision and control, and not free to leave. Furthermore, the fact that the person lacked capacity under the Mental Capacity Act 2025, meant they were unable to give valid consent.
The overturning of Cheshire West now holds that:
- There is no acid test. Instead, a ‘multifactorial assessment’ is required. However, the key point here for practitioners is that no guidelines have been given to direct what this should include, leaving us at sea with regards our ability to assess whether the individual is subject to a DoLs.
- Secondly, a lack of legal capacity no longer equates to an inability to consent. A DoLs is only likely to be applied if the person protests against their confinement. This of course immediately raises questions regarding so many of our patients and clients who either cannot express their objections, or lack the cognitive, emotional or developmental ability to express discontent for a myriad of reasons. Concerns regarding abuse of the system, and a slackening of the current rigour to protect those unable to defend their own rights, immediately rear terrifyingly to mind.
- Finally, the nature of the environment may play a part, with the less ‘cell like’ environments less likely to qualify as a deprivation of liberty. It seems a gilded cage is no longer a cage.
Whilst the ruling presents a practical advantage for the considerable backlog of cases that plague the Court of Protection, Claire and I cannot help but feel a deep sense of despair at this apparent regression in our notion of protection for the most vulnerable in our society. Rather than provide the resources required to maintain our ethical standards, we have instead chosen to lower those standards.
Whatever follows in the coming months and years, one aspect is very clear: as professionals, we will have to pull together to defend the rights of our most vulnerable clients, and navigate this new system. It is the therapists, health and legal professionals at the coal face, working to advocate for their clients, who will observe the true cost of this ruling, and it is us who must continue to voice our concerns and report on the real world consequences of this judgement.
About the author
Dr Emma Hale is a Clinical Psychologist and Neuropsychologist and Founding Director of Totus Neurorehabilitation. She specialises in supporting individuals following traumatic brain injury, with a particular focus on psychological adjustment, values-led rehabilitation and interdisciplinary team working.
Emma is committed to delivering compassionate, evidence-based neuropsychological care that helps individuals rebuild meaningful and fulfilling lives after neurological injury.
View Emma’s full profile here: https://totusrehab.co.uk/team/dr-emma-hale-clinical-neuropsychologist-bristol/
Connect with Emma on LinkedIn: https://www.linkedin.com/in/emma-hale-199b36180/Â
