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‘The simple idea that has shaken adult social care to its foundations’

User AvatarPosted by Kathryn Platten at 08/10/2014 10:06:20
Community Care - 1 October 2014

'The simple idea that has shaken adult social care to its foundations’

Six months on from a landmark Supreme Court ruling on deprivation of liberty, legal researcher Lucy Series analyses its impact

The Supreme Court’s Cheshire West judgment is based on a simple, but profound, idea: that a person with a disability who is subject to restrictions that would constitute a deprivation of liberty for a person without a disability, is entitled to the full protection of Article 5 of the European Convention on Human Rights (ECHR): the right to liberty and security of person. This simple idea has shaken adult social care to its foundations in the past six months.

Some commentators criticised the Supreme Court ruling, handed down by Baroness Hale, because they felt it departed from ‘common sense’. Others celebrated a decision they felt would better protect people’s human rights through independent assessments of capacity and best interests, independent advocacy and access to the Court of Protection.

In the weeks that followed, blogs and discussion lists were flooded with questions about Lady Hale’s ‘acid test’ for deprivation of liberty – that to be deprived of their liberty in care settings, a person must be subject to continuous supervision and control and not free to leave. How continuous and controlling must ‘continuous supervision and control’ be? What does ‘free to leave’ mean? There will still be borderline cases and no doubt further litigation on these issues.

To read this article in full please visit www.communitycare.co.uk (external website)

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