Supreme court ruling to change deprivation of liberty assessments in Portsmouth

A landmark UK Supreme Court ruling could change how Portsmouth City Council assesses whether vulnerable adults are being deprived of their liberty.

A report to the council’s cabinet member for community wellbeing, health and care on July 13 outlines the implications of the judgment, which was handed down on June 2.

The ruling overturns key parts of the 2014 Cheshire West judgment, which established the so-called “acid test” used across England to determine whether someone was being deprived of their liberty in a care home or hospital.

Deprivation of Liberty Safeguards (DoLS) protect people who lack the mental capacity to decide where they live or leave a care setting, while allowing them to challenge the arrangements in court.

The 2014 ruling dramatically widened the definition of deprivation of liberty, resulting in a sharp rise in referrals and assessments for councils across the country.

The report says local authorities have “struggled to keep up with the high demand” ever since, with many building up lengthy waiting lists.

It adds that Portsmouth has been “one of the best performers nationally in terms of processing DoLS requests in a timely manner”, although it has still been unable to meet statutory timescales in every case.

However, the Supreme Court has now ruled unanimously that the Cheshire West decision “was incorrect”.

Instead of relying on a single “acid test”, professionals must now assess “multiple factors” when deciding whether somebody is deprived of their liberty, taking account of “the type, duration, effects and manner of implementation of restrictions on the person”.

Councillor Matthew Winnington, cabinet member for community wellbeing, health and care, said the ruling was “overall very positive, not just for the council but for right across the country.”

He said the original ruling years ago had placed a “burden” on local authorities.

Using the example of a person with dementia leaving a care home without authorisation, he said this would previously have triggered a DoL application, even if the person was otherwise happy living there.

He added that people with dementia sometimes “don’t know” they have absconded or may leave for reasons unrelated to their care setting, such as “going for a walk”.

Mr Winnington welcomed the end of what he described as the “carte blanche” approach, saying a nuanced and individual-focussed approach would save councils time and money.

He said: “It’s been a huge burden” for other authorities and would be a “massive relief” not only in terms of time but money.

He added: “For Portsmouth in particular fortunately the impact is relatively minimal because we were pretty much on top of things.”