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Recognising deprivation

The Supreme Court made a landmark judgement on 19 March 2014 about changes to the meaning of deprivation of liberty following the Cheshire West Court Case. They revised the test of deprivation of liberty into a so-called acid test, which is as follows:

If all of the following simultaneously apply to the person, they are being deprived of their liberty:

  • under continuous supervision and control
  • not free to leave
  • lacking the capacity to consent to these arrangements

The test is an objective perspective, regardless of the motivation that lies behind it or the quality or appropriateness of the care that is being provided.

It is no longer relevant whether the person is compliant or whether there is a lack of objection. The focus is not on the person’s ability to express a desire to leave but on what those with control over their care arrangements would do if they sought to leave.

The purpose of the placement is not relevant and the person should no longer be compared only with another person who has the same level of disability.

The concept of relative normality as expressed by the Court of Appeal in the Cheshire West case was determined by the Supreme Court as not relevant when deciding whether an individual is being deprived of their liberty.