A best interests assessment form
The Law Society has issued a summary of 27 deprivation of liberty legal cases, including seven it advises should not be followed, in a bid to help social workers, best interest assessors and other professionals comply with a landmark Supreme Court ruling.
The summary of key cases, which can be downloaded here, is included as part of new comprehensive practice guidance on deprivation of liberty published today. The guidance, which was commissioned by the Department of Health, also contains practical case studies involving a range of scenarios including care homes, hospitals, supported living, and care for under 18s.
The document aims to help social workers and other practitioners handle the ongoing practical fallout of the landmark ruling issued by the Supreme Court last March in the linked cases of P v Cheshire West and Chester Council and P&Q v Surrey County Council.
The ruling (see below) effectively lowered the threshold for what constitutes deprivation of liberty in care and triggered a surge in cases. Today’s guidance aims to help practitioners identify when the treatment of someone amounts to a deprivation of liberty in the wake of the ruling.
Care placements in care homes and hospitals that meet the deprivation of liberty threshold must be authorised under the deprivation of liberty safeguards. Cases outside of care homes and hospitals, notably supported living, must be authorised via the court of protection.
The full guidance documents
About the Supreme Court ruling
The Supreme Court’s judgement in the linked cases of P v Cheshire West and Chester Council and P&Q v Surrey County Council in effect lowered the threshold for what constitutes a deprivation of liberty in care.
The court’s “acid test” said that a person who lacked capacity to consent to their care arrangements was deprived of their liberty, under Article 5 of the European Convention of Human Rights, if:-
- they were under continuous supervision and control;
- they were not free to leave, and;
- their care arrangements were the responsibility of the state.
The ruling rendered irrelevant factors that had been allowed for in the past, such as whether the person objected to their care arrangements.The Supreme Court also made clear that such a deprivation of liberty would apply in a domestic setting, as well as in health or social care placements.
The judgement was welcomed for extending key human rights safeguards to a broader group of vulnerable people. But it meant that, overnight, many people in care homes, hospitals and supported living arrangements suddenly met the threshold to have their care arrangements assessed or reassessed to see if they were deprived of their liberty and, if so, whether or not this was in their best interests.
2. How would you assess whether Vicky has capacity?
Correct answer: This would depend on the individual. The MCA states that all reasonable measures must be taken to support someone to make a decision. This would include utilising all communication methods used by the person, education programmes and desensitisation approaches. To demonstrate capacity, the individual must be able to understand the information presented to them, retain the information long enough to make the decision, be able to weigh the information as part of the decision making process and must be able to communicate the decision back to those involved.
With regards to Vicky, you could consider supporting Vicky to gain an understanding of what her diabetes means by using simple sentence structure with picture aids or social stories to aid education. You may also consider attending the diabetes clinic using graded exposure to support her monitoring and understanding of her diabetes.
This might mean that she does not have capacity at this moment in time. However through working with those close to Vicky and through supporting her education, she may be able to gain capacity to make an informed decision regarding managing her diabetes at a later date.