Areas of Practice
Mental Health Law

Clodes Mental Health Specialist Solicitors serving Wales & West of England

We have been dealing with Mental Health Law issues for the last 25 years.If you need to speak to a Mental Health Specialist Solicitor Call us today to discuss your case on 02920 76 50 50.

If you are detained under the Mental Health Act 1983 we are able to visit you to take your instructions explain your rights and answer your queries with no charge to you. We will do all we can to address any concerns you have and represent you at your Mental Health Tribunal.

We understand how stressful and upsetting being detained can be and how important it is that your views concerning your detention and treatment are heard by the Tribunal. 

A Law Society Mental Health Panel Member will deal with your case and thus you can be assured a specialist Solicitor will be handling your matter.

We also provide:

  • Advice and assistance at Care Programme Approach (CPA) Meetings
  • Advice in relation to the Mental Capacity Act Deprivation of Liberty Safeguards (DOLS)
  • Advice in relation to making and opposing Deputy Applications
  • Advice in respect of Judicial Review
  • Representation at the Court of Protection

Michael Clode head of our Mental Health Department and Senior Partner is a member of the Law Society's accredited Mental Health Law Panel.

Deprivation of Liberty Landmark Case 

Case of Cheshire West: ‘A gilded cage is still a cage’

Background of the Case

P was born with cerebral palsy and Down's syndrome and required 24 hour care. Until he was 37 he lived with his mother, who was his principal carer, his mothers health deteriorated and Social Services concluded that she was no longer able to look after P. In 2009 Social Services obtained orders from the Court of Protection that it was in P's best interests to live in accommodation arranged by the local authority.

P could walk short distances but needed a wheel chair to go further. P required prompting and help with all the activities of daily living, getting about, eating, personal hygiene and continence. He wore continence pads. Because of his history of pulling at these and putting pieces in his mouth, he wore a "body suit" of all-in-one underwear which prevented him getting at the pads. Intervention was also needed to cope with other challenging behaviours which he could exhibit.

In 2011 the case went before the court who determined P was deprived of his liberty. The Judge Backer J held that P was completely under the control of the staff at Z House, that he could not "go anywhere, or do anything, without their support and assistance". Further, "the steps required to deal with his challenging behaviour lead to a clear conclusion that, looked at overall, P was is deprived of his liberty". Nevertheless it was in his best interests for those arrangements to continue. 

The Court of Appeal overturned the 2011 ruling that P had been deprived of his liberty. 

The Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty. Munby LJ, who delivered the leading judgment with which Lloyd and Pill LJJ agreed, developed the concept of "relative normality", and considered it appropriate to compare P's life, not with that which he had enjoyed before when living with his mother, but with that which other people like him, with his disabilities and difficulties, might normally expect to lead.

The Supreme Court 

The case went to the Supreme Court. The Supreme Court ruled that the Court of Appeal was wrong to differentiate and reinforced that people with disabilities have the same rights as everyone else. The Supreme Court made a declaration that P’s living arrangements at the relevant time constituted a deprivation of liberty within the meaning of section 64(5) of the Mental Capacity Act 2005.

The Official Solicitor on behalf of P said, “People who lack the capacity to make (or implement) their own decisions about where to live may justifiably be deprived of their liberty in their own best interests. They may well be a good deal happier and better looked after if they are. But that does not mean that they have not been deprived of their liberty. We should not confuse the question of the quality of the arrangements which have been made with the question of whether these arrangements constitute a deprivation of liberty”.

Lady Hale in the leading Judgement of the Supreme Court said “Those rights include the right to physical liberty, which is guaranteed by article 5 of the European Convention. This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty. But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage”

Supreme Court Deprivation of Liberty Policy  

Lady Hale said a periodic independent check on whether the arrangements made for those deprived of their liberty are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the Deprivation of Liberty safeguards (which could in due course be simplified and extended to placements outside hospitals and care homes). Nor should we regard the need for such checks as in any way stigmatising of them or of their carers. Rather, they are a recognition of their equal dignity and status as human beings like the rest of us.

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