The crisis in our care homes – 10 years on from Cheshire West
15th August, 2024
This article revisits the significant changes and ongoing challenges in care homes following the landmark Cheshire West ruling.
The Deprivation of Liberty Safeguards
The Bournewood case[1], heard by the European Court of Human Rights (“ECHR”) in 2004, related to HL who had severe autism. Following deterioration in his behaviour, HL was informally admitted to hospital where he remained on an indefinite basis, without the protections afforded to people similarly detained under the Mental Health Act who were able to challenge their detentions. It was asserted in proceedings that HL was not being deprived of his liberty as he was compliant with his admission. However the ECHR held that this admission was a deprivation of liberty and, as HL was without protections under the law, this was a breach of his Article 5 right to liberty.
This case clearly highlighted a failing in the legal system in relation to those people detained in care settings under common law, without formal authorisation. Clearly the view of the ECHR was that this was inadequate and in contravention of Article 5 of the European Convention on Human Rights.
Following this decision, the Mental Capacity Act 2005 (“MCA”) was introduced (effective as of 2007). This implemented the Deprivation of Liberty Safeguards (“DoLS”) into law, which is the mechanism we rely upon today for the authorisation of a deprivation of an individual’s liberty.
The definition of ‘deprivation of liberty’ was defined by the Supreme Court in the case of Cheshire West[2] in 2014 and that definition had the effect of widening the range of circumstances in which an authorisation was required. The Court held that the key questions to determine whether an individual was being deprived of their liberty was (1) whether the individual is under continuous supervision and control, and (2) whether they are free to leave. A lack of objection, the normality of a measure, or the measure’s purpose are all irrelevant factors in determining whether there is a deprivation of liberty. This resulted in many standard measures, which did not previously need authorisation, such as preventing residents lacking capacity from leaving their care homes, now requiring formal approval.
Deprivations of liberty within care homes
Care homes clearly play a vital role within modern society, by providing specialised care and supervision to citizens, both young and old, who are unable to independently support themselves. According to the Office for National Statistics, the number of care home residents in England, as of 28 February 2023, has grown to 372,305[3] persons, and, with an ageing population[4], it is reasonable to expect that this number and the demand on our care homes will only continue to grow.
On 18 March 2024, the Law Society issued updated guidance[5] on how to identify a deprivation of liberty and seek its authorisation. This provides specific guidance for care homes and notes various standard measures which may indicate that a deprivation of liberty is occurring including:
- Keypad entry systems.
- Set times for refreshments and activities.
- Monitoring and supervision.
- Limited meal choices.
- The use of restraint.
- The use of medication to manage mental health and behaviours.
Many, if not all, care home residents will therefore be subject to measures which may constitute a deprivation of liberty and, per the Cheshire West decision, if they lack capacity to consent to these arrangements, formal authorisation for the measures will need to be sought.
Authorisations for care homes
The key mechanism for care homes to obtain such authorisation is provided for under Schedule A1 MCA 2005[6]. Broadly, this provides authorisation where an individual is being deprived of their liberty in a care home regardless of the purpose of their residence there.
This authorisation is granted by the relevant supervisory body, which is typically the Local Authority. Where there is a dispute as to whether it is in the individual’s best interests to be accommodated and cared for in the care home, the authorisation should be subject to the scrutiny of the Court of Protection[7].
A faltering system
As a result of the decision of Cheshire West a decade ago, Local Authorities have consequently faced an exponential rise in the number of applications being made to authorise care home residents’ deprivations of liberty. Statistics from NHS England[8] show that as many as 126,100 of these applications went uncompleted by Local Authorities in 2023 and, of those that were completed, authorisations took 156 days on average to be granted, with only 19% of authorisations meeting the statutory timeframe of 21 days. It is apparent that many Local Authorities are buckling under the pressure of the current DoLS system.
Consequently, a report from Age UK[9] has demanded that urgent action be taken to provide proper funding to Local Authorities for the existing DoLS system, in order to empower them to hire more staff and effectively manage the growing number of requests. However, given the Government’s Impact Assessment in 2022[10] estimating that a huge £2.45bn in funding would be required each year to ensure that all applications are processed by the Local Authorities, ensure the effective running of the Court of Protection, and to cover the additional ancillary and training costs, as opposed to the £527.18mi required to keep things running as they are, it seems unlikely that a reprieve will be offered to our care homes and Local Authorities any time soon.
Care homes are therefore likely to be faced with a long wait for authorisations to be granted, which raises question as to what they should be doing during this time. It is our view that frequent reviews of care arrangements in these circumstances are essential in order to ensure that residents’ care arrangements remain clearly within their best interests. Adhering at all times to principles of least restrictive care is also critical, as is ensuring that communication with residents as to their wishes and feelings is maintained along with good contact with their families and carers. Where residents do not have family and friends to act as advocates for them, consideration should be given to contacting advocacy services who can act on their behalf. Consideration should also be given to whether there any immediate or upcoming changes in circumstances that may demand urgent authorisation by the Court of Protection, irrespective of any authorisation being awaited from the Local Authority.
For further information, please contact Joseph Beeney or one of our specialist health and advisory care lawyers.
[1] HL v UK 45508/99 [2004] ECHR 471.
[2] Cheshire West and Chester Council v P [2014] UKSC 19.
[3] Office for National Statistics, ‘Care homes and estimating the self-funding population, England: 2022 to 2023’ (Office for National Statistics, 06 July 2023) https://www.ons.gov.uk/peoplepopulationandcommunity/healthandsocialcare/socialcare/articles/carehomesandestimatingtheselffundingpopulationengland/2022to2023#overview accessed 19/03/24.
[4] Centre for Ageing Better, ‘The State of Ageing 2022’ (Centre for Ageing Better, Undated) accessed 19/03/24.
[5] The Law Society, ‘Identifying a deprivation of liberty: a practical guide’ (The Law Society, 18 March 2024) accessed 19/03/24.
[6] Mental Capacity Act 2005, Schedule A1.
[7] London Borough of Hillingdon v Neary and Others [2011] EWCOP 1377.
[8] NHS England Digital, ‘Mental Capacity Act 2005, Deprivation of Liberty Safeguards, 2022-23’ (NHS England, 24 August 2023) accessed 19/03/24
[9] Age UK, A hidden crisis: Older people and deprivation of liberty in care homes (Published 08 March 2024)
[10] Department of Health and Social Care, Mental Capacity (Amendment) Act (MC(A)A) Impact Assessment (Published March 2022).
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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