March was a significant month for the protection of human rights for people with limited capacity to make their own decisions. Both the House of Lords Select Committee report on the implementation of the Mental Capacity Act 2005 (MCA), and a Supreme Court judgment redefining our understanding of what constitutes a ‘deprivation of liberty’ were published.

The MCA is aimed at keeping any person who lacks the mental capacity to make a specific decision for themselves at the heart of decision-making. The ethos of the MCA centres on empowerment of the individual, yet the Lords committee found that ‘risk aversion’ and ‘paternalism’ often prevail in the health and social care sectors, and recommended ‘overall responsibility for the act be given to an independent body’.

Particular criticism was levelled at the deprivation of liberty safeguards (DOLS). These are intended to provide protection in law for anyone deprived of their liberty, in a hospital or care home, for the purpose of ensuring they receive the care and treatment they need.

The evidence the committee heard regarding safeguards was alarming: ‘The evidence suggests that tens of thousands of people are being deprived of their liberty without the protection of the law, and without the protection that parliament intended.’

The Supreme Court decisions in Cheshire West and Chester Council v P (2014) UKSC 19, (2014) MHLO 16 and P and Q v Surrey County Council [2014] UKSC 19 redefines the test to be applied when deciding whether a person (who lacks capacity to make decisions about their own care arrangements) is being deprived of their liberty. If so, then the deprivation has to be authorised, either by a court or by the use of DOLS. The appeals concerned P and Q (the latter previously known as MIG and MEG). MIG and MEG are young women with learning difficulties. MIG lives with her foster mother and MEG in a residential care home. P was born with cerebral palsy and Down’s syndrome, and had lived with his mother until he was 37. He now has a supported living placement.

The Supreme Court decided that the factors to be taken into account in determining whether a person’s living situation amounted to a deprivation of liberty did not include: the ‘relative normality’ of the arrangement; the person’s apparent compliance; or whether the arrangements are in their best interests.

The starting point is the ‘concrete situation of the individual’. Is the person under continuous supervision and control by others? Are they free to leave their residence?

There was no criticism of the living arrangements of MIG, MEG or P; they were ‘in their best interests’. Nevertheless, the court determined that each was being deprived of their liberty. The judgment applies equally to the older person in a care home. If they are deprived of their liberty, they are entitled to procedural safeguards.

Provider organisations will struggle to understand the implications of this judgment. Local authorities may be bombarded with requests from providers for authorisation of deprivation of liberty for relevant residents in their care. As the DOLS procedure only applies to hospitals and care homes, an application to the Court of Protection for specific authorisation for deprivation of liberty will be necessary for any affected person within a supported living arrangement or shared lives scheme. The Court of Protection will be anticipating a significant rise in applications and appeals.

The Department of Health is understood to be drafting urgently needed new guidance. If the Lords’ recommendations, together with this new definition of ‘deprivation of liberty’ are to be embedded into our social care provision, parliament will also need to act. The costs implications may be significant. Quality legal advice from specialist solicitors at the outset might be the first defence in ensuring potentially spiralling costs are kept under control.

Sheree Green is a senior associate at Anthony Collins and a member of the Law Society’s Mental Health and Disability Committee