Robert Nisbet – The Supreme Court’s Decisions on the Cheshire West and Surrey Cases. Should Local Authorities have been Better Prepared?

The recent decision by the Supreme Court in Cheshire West and Chester Council v P (2014) UKSC 19  reconsidered the definition of ‘deprivation of liberty’, construing it much more widely than previously understood, and bringing many more people within the scope of the Deprivation of Liberty Safeguards (DoLS).  The implications of this decision is currently presenting seismic challenges for health and social care services, particularly for the Local Authorities who act as the administrative bodies for the deprivation of liberty process. This will not be a ‘one off crisis’, remedied by quick fixes; the challenges presented by the decision, and resource requirement implications are for the long term.  And yet, what timing, just as cuts to Local Authority budgets, which have hit social care dramatically over the past 3 plus years, are really beginning to bite.

But, why has the Supreme Court’s decisions caused such panic? Should services not have been better prepared in their contingency planning for the decisions made by the Supreme Court?  Considerable resources are spent in emergency planning by local authority services and their partners in preparing for floods, excessive snow falls, major incidents and the like.  These cases have been coming through the court system now for almost six years – why is there no contingency here?

It seems that, when it comes to the rights of those most vulnerable in our communities, those whom society deem as needing the most protection for themselves and often from others, contingency planning doesn’t really seem to come into it.  But where the majority of individuals are totally dependent upon the statutory sector to look out for and to meet their needs, where does the responsibility lie in terms of protecting their human rights?  Is it not implicit in undertaking a duty of assessing, reviewing, maintaining, advocating and providing assurances that the person’s human rights are central to that personal care plan? Is the structure and facilitation of personalisation not required to be built on the foundations of human rights?

If there is one major concern that continues to be demonstrated, amongst the plethora of other issues, it is that the level of activity post-Cheshire West once again illustrates that those in our society who are the most vulnerable, least able to represent themselves, are still largely ‘out of sight’ and often ‘out of mind’. Again the current situation demonstrates just how many people, be they in care homes, hospitals, in their own homes or other types of community housing/care schemes are just not on the radar of many services.

In the fall-out from Cheshire West, many Local Authority’s Supervisory Bodies for DOLS, are reporting more referrals in a month than for the whole previous year, some even twice that number. Many have taken on extra staff, both for administration and for assessment, with teams doubling/trebling in size to meet the demand.  Locally, 75% of the East Midland Supervisory bodies are reporting that they are unable to meet the statutory time limits required by statute.  But taking staff from other front line services will have consequences, particularly as this situation will continue indefinitely

But should anyone really have been surprised by this?  The judgment was of two joined cases, both of which began their journey to the Supreme Court many years previously, as long ago as 2009 in the case of the sisters P and Q.  The judge held that these living arrangements were in the sisters’ best interests and did not amount to a DOL. The Court of Appeal in their judgment  dismissed an appeal.  As with the Cheshire West leave of appeal to the Supreme Court was granted.

How well briefed were the local authorities by their lawyers and ‘MCA and DOLS watchers’ to understand that these cases were of such significant importance as to likely have substantial consequences? The Supreme Court’s hearing commenced in October 2013, with the decision of the Court made public on the 19th March 2014, notably only a few weeks after the House of Lords Select Committees review report on the MCA was published.

Given that many local authorities had disbanded their cross agency and partner arrangements for the management of MCA and DOLS, how able were they to keep a ‘watch’ and to undertake contingency planning?

I would suggest that it is a reasonable assertion that the Supreme Courts decision should not have come as a surprise! Indeed that the decisions were largely predictable. The cases referenced were fundamentally and directly about the need for ensuring and protecting those individual’s human rights. They were not about the quality of care, nor as to where or by whom their care should be provided by. The courts looked at the nature and degree of the care required, making careful examination of the type and level of restrictions/controls exercised and how ‘routine’ this was. How should this be lawfully maintained and authorised to ensure that the individual’s human rights were upheld?

The new programme in town is ‘TLAP’. ‘Think Local Act Personal’ present in a ‘care strategy and guidance’ on how services can be provided/rationed. Twenty plus national organisations including government departments, professional bodies and care providers have signed up to TLAP. Peter Beresford reminds us “…the move to personal budgets and personalisation has generally not been one based on messages from evidence”[1].

This brings me to the nub of this article. What is the essential and unequivocal difference between person centred planning, personalisation, ‘Think Local Act Personal’ and the legal requirements of the MCA and DOLS? Noting that we are talking about the most vulnerable and dependent of people requiring care!

If ‘person centred planning’ is at the very core of assessing need to inform access and entitlement, why had the fundamental human rights of so many other people in similar care arrangements not been picked up earlier? It appears that human rights and personalisation have existed in separate worlds and only now is this being addressed as a consequence of the Supreme Court’s decision.

At the core of the MCA is personalisation. Human rights and the protection of those most vulnerable in our communities must surely be core to person centred planning. MCA and DOLS is not a separate branch of care. It is about you, my neighbour, our ‘personalities’, our history, and our beliefs, culture and at times our frailties.  At times of greatest dependency upon others for care the protection of human rights should be fundamental and not panic reaction. For too long this has been ignored or just considered too difficult.  As an aging social worker trained in a very different era, I commend highly the Supreme Court’s decision.

[1] Beresford P. [2013] Personalisation: From Solution to Problem? Policy Press, Bristol University



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