@BJhealthlaw

@BJhealthlaw

applying the Cheshire West test

19 November 2015

@BJhealthlaw

• the landscape

– Law commission - 2 November 2015

– DH guidance - 22 October 2015

• DoL for children – A local authority v D –

28 July 2015

@BJhealthlaw

• DoL in the community – KW v Rochdale

(Court of Appeal) – 20 October 2015

• DoL in ICU – LF v Coroner of Inner South

London – 29 October 2015

• q&a

@BJhealthlaw

• closed 2 November 2015

• headlines

– reform urgently needed (law or resources?)

– resources

– nuanced and proportionate approach /

patchwork

– role of AMCP

– hospital scheme as an anomaly

@BJhealthlaw

• letter from Niall Fry published - 22

October 2015

• covers news and guidance

• including ICU (now overtaken by events)!

• link - http://www.scie.org.uk/mca-

directory/files/dh-letter-to-mca-dols-

leads-oct-2015-final.pdf

@BJhealthlaw

• A local authority v D (Keehan J, 28 July

2015)

• AB – a 14yo with moderate / severe LD and

ADHD

• DoL at children’s home – “staff must be

aware where he is at all times”

@BJhealthlaw

• ‘Cheshire West’ criteria must be rigorously

applied in every case

• children not in care – apparent DoL may be

no DoL where it falls within “zone of

parental responsibility” – depends on age

/ needs (relative normality?)

@BJhealthlaw

• children in care – extremely unlikely

parent could consent, so LA cannot either

• only option (if not CA s25) is use of

‘inherent jurisdiction’

The ‘Rochdale saga’

• Rochdale MBC v KW

• 18 November 2014 – Mostyn J

• Katherine - in her own home – is she DOL?

• if so – would require periodic review by

the Court and “every pound spent on

such reviews is a pound less for other

vitally necessary projects”

@BJhealthlaw

• aged 52

• “severely mentally incapacitated”

• “trapped in the past” and under

delusions is wandering, searching for her

3 young children

@BJhealthlaw

• now - at her own home “with 24/7

support” – “if she tries to wander off she

will be brought back”

• “just ambulant” using a wheeled frame

• both sides’ lawyers said she was DoL

• Judge disagreed

@BJhealthlaw

• ‘free to leave’ means removing herself to

live somewhere else

• “ambulatory function is poor and

deteriorating”

• “if she becomes house-bound or bed-

ridden it must follow that her

deprivation of liberty just dissolves”

@BJhealthlaw

• “…she does not have the physical or

mental ability to exercise that freedom”

• “the matter should be reconsidered by

the Supreme Court”

@BJhealthlaw

“Imagine a man in hospital in a coma.

Imagine that such a man has no

relations demanding to take him away.

Literally, he is not "free to leave".

Literally, he is under continuous

supervision. Is he in a situation of

deprivation of liberty? Surely not.”

@BJhealthlaw

• 30 January 2015 - Court of Appeal

approved (without a hearing) a consent

order allowing appeal

• 13 March 2015 – Mostyn J disagreed with

CoA, order was ambiguous, still says it’s

no DoL, and insists (if he is wrong) that

CoA should give reasons

@BJhealthlaw

Definition of DoL has been

“… settled relatively recently by the

Supreme Court. [Mostyn J’s] analysis was,

and could be, of no legal effect. It was

irrelevant.”

@BJhealthlaw

“This litigation has an unfortunate history.

The judge has twice made decisions which

have been appealed [successfully]. This has

lead to considerable unnecessary costs to

the public purse and unnecessary use of

court time”

@BJhealthlaw

“we regret to say that it is the judge’s

tenacious adherence to his jurisprudential

analysis leading to his conclusion that

Cheshire West was wrongly decided that has

been at the root of this”

@BJhealthlaw

“… the judge’s passionate view that the

legal analysis of the majority in Cheshire

West is wrong is in danger of distorting his

approach to these cases…”

@BJhealthlaw

• Mostyn J (in KW (2), 13 March 2015) – “…

the law is now in a state of serious

confusion”

• “Even if Cheshire West is wrong, there is

nothing confusing about it” – Lord Dyson

“It may seem that way from the lofty heights of the Court of

Appeal; and of course the literal words of the Supreme Court's

test are perfectly easy to understand. But for we hoplites who

have to administer it at first instance the scope and ramifications

of the test are, with respect, extremely confusing.” Mostyn J

@BJhealthlaw

• Divisional Court, 29 October 2015

• Maria, 45, down’s syndrome

• admitted to hospital with pneumonia 19

November 2013

• deteriorated and moved to ICU 2/3

December 2013

• died 7 December 2013

@BJhealthlaw

• plainly “UCS+C+NFTL” but DoLS not used

• coroner’s inquest but started without

jury

• JR of that decision – jury is mandatory if

not natural death and D was “in state

detention”

• coroner was right – Maria was neither ‘in

state detention’ nor DoL

• context of Cheshire West was long term

care and residence – living arrangements

• it should not be ‘mechanistically’ applied

in cases of (undisputed) medical

treatment – with involvement of family

• intention was to discharge her as soon as

possible

@BJhealthlaw

• coroner was right – neither in state

detention nor DoL

• ‘state detention’ for CJA means

‘compulsorily detained’ (makes more

sense if overriding a capable decision?)

• no dispute over treatment needs,

decisions based on best interests,

disorder / treatment affects her same as

anyone else

@BJhealthlaw

• the ‘mischief’ and ‘policy’ behind

Cheshire West does not justify test

“being applied without modification to

the different situation of a patient who

is in hospital for care and treatment of

physical disorders”

@BJhealthlaw

• there is little need for additional

safeguards where P has “a devoted

family member who is actively involved

and motivated by the best interests…

leading to accord with the treating

team”

@BJhealthlaw

• “Wholly artificial to say that she was

compulsorily detained…” (Gross LJ at 86

and Charles J at 130)

• nonsense to hypothesise a theoretical

attempt to remove her (cf the Law

Society Guidance)

@BJhealthlaw

• “… the reality was that Maria remained

in the ICU not because she had been

detained or deprived of her liberty but

because for pressing medical reasons and

treatment she was unable to be

elsewhere”

Gross LJ and Charles J

• patients in ICU are not DoL

• by extension – reasoning applies to acute

medical treatment for physical health,

and hospices (where consensus between

family and clinicians)?

• revision of Chief Coroner’s guidance?

• welcome for acute providers and for DoLS

teams, and coroners

@BJhealthlaw

• only oblique answer to Art 5 in ICU, still

more so for other acute medical settings

• leave to appeal to Court of Appeal

• 2 contradictory judgments, and some

more Qs than answers

– is the distinction between treatment for

physical / mental health appropriate /

feasible?

– Charles J – in cases of medical treatment

for physical disorder, is there a difference

between Ps with / without previous

mental incapacity

– reasoning which is more resonant with

CoA in Cheshire West than the Supreme

Court

@BJhealthlaw

• case law not very clear yet (and what

about Re P and FG?)

• blurred lines in practice

• risks of offending against all the Supreme

Court Cheshire West exclusions

@BJhealthlaw

• fundamentally – article 5 requires

protection if DoL for more than a

“negligible period of time” – hard to say

that this only kicks in at ‘living

arrangements’….

@BJhealthlaw

• battle is moving on from definition of DoL

to how / where the definition we have

should be applied

• DoL clearly in long term care / living

arrangements in institution – per Cheshire

West

@BJhealthlaw

• some doubt in intensive care (and maybe

by extension, hospices / acute medical

ward?) – but caution…

• DoL in the community – ironically maybe

now easier to say clearly DoL per

Cheshire West, and need to take these to

COP, per Re X / NRA

@BJhealthlaw

Please get in touch if you have any questions

or wish to discuss the topics we’ve covered

further…

ben.troke@brownejacobson.com | 0115 976 6263