The Supreme Court and deprivation of liberty: where are we now?

Abstract

Deciding on where the tipping point between restrictions and deprivation arises in care settings has important legal implications, but until recently case law has not much helped to resolve these challenging issues. An important milestone has been the Supreme Court judgment in the so-called Cheshire West case. This judgment, handed down in March 2014, set a low threshold to apply (the ‘acid test’) in deciding when someone may be being deprived of their liberty and therefore that additional legal authorisation is required. The application of the acid test is not straightforward and its effects are wide-ranging. In this article, I discuss the evolution of the concept of deprivation of liberty in health and social care, the implications of the judgment and the application of the acid test. I also briefly highlight the interface between the Mental Capacity Act 2005 and the Mental Health Act 1983.