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18th December 2015

Home or Hospital and Not Free to Leave

Home-or-hospital-and-not-free-to-leaveThere’s some themes running through a couple of recent case law judgements which I thought would be worth talking about this week, as we continue to grapple with definitions of being deprived of your liberty. To summarise the questions that have been highlighted in a couple of recent cases, these are ‘can you be deprived of your liberty whilst living in your own home?’, and ‘can you be deprived of your liberty whilst lying immobile in your hospital bed?’ Very roughly the emerging answer to the first scenario is yes and in the second no. As you can imagine it’s not quite that straightforward. So here goes in trying to summarise the cases.

In your own home

The first case is one that’s been rumbling along for a while, known as KW v Rochdale MBC. There has been a further development in this case since it went to the Court of Appeal. This is a 52 year old lady who lacks mental capacity to decide what’s best for her due to brain injury. She lives in her own home but with a package of 24 hour support. This case became very interesting because the Court of Protection judge in the case, Justice Mostyn, maintained that she was not deprived of her liberty mainly because of her physical inability to move freely about. He also said she did not meet the ‘not free to leave’ test because she didn’t have anywhere else to go and live – it was her own home. However this case has now gone to the Court of Appeal and their judgment completely contradicts Mostyn’s view. They have said that KW would be brought back home by carers if she tried to wander off, therefore she is deprived of her liberty, never mind the fact this is taking place in her own home.

In a hospital bed

The second case called LF v HM Coroner for Inner South London (there’s a particular issue about coroner’s inquests into deaths of people deprived of their liberty which I’ve written about it in a previous blog called ‘Delaying tactics’) but the particular issue here was a lady who lacked mental capacity who died in intensive care following pneumonia. Her family wanted her to be in hospital, she was in no state to try and leave, and if she had got better she would no doubt have been discharged from hospital like anybody else. The judge’s view in this case was that it would seem entirely inappropriate to start applying definitions of deprivation of liberty to cases like this.

Changing picture

So to summarise if you are working with someone who is living at home with a lot of support – and prevented from leaving – that sounds like a deprivation of liberty that needs to be authorised. If you are working with someone in hospital who is getting intensive medical treatment and in no position to leave that doesn’t sound like a deprivation of liberty. Beware, the playing field of deprivation of liberty is changing all the time!

David Beckingham – QCS Expert  Mental Health  Contributor

Topics: Mental Health

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