Intended for healthcare professionals


Deprivation of liberty in healthcare

BMJ 2014; 348 doi: (Published 21 May 2014) Cite this as: BMJ 2014;348:g3390
  1. Ruth Cairns, consultant in old age psychiatry1,
  2. Matthew Hotopf, professor of general hospital psychiatry2,
  3. Gareth S Owen, clinical senior lecturer2
  1. 1South London and Maudsley NHS Foundation Trust, London, UK
  2. 2Institute of Psychiatry, Department of Psychological Medicine, King’s College London, London SE5 9RJ, UK
  1. gareth.1.owen{at}

UK Supreme Court judgment has changed the rules

The right to liberty in UK healthcare has been greatly strengthened this year. In March, the House of Lords Select Committee on the Mental Capacity Act (2005) published a report that severely criticised inconsistent safeguarding provisions for patients without mental capacity who are deprived of their liberty.1 Later that month, the UK Supreme Court gave judgment in a case “Cheshire West,” which involved three adults with severe learning disability and answered the general question “what is a deprivation of liberty?”2

The judgment introduces a new disability neutral test—an “acid test”—which aims to ensure that the right to liberty applies equally to people with and without mental incapacity. The test will greatly increase safeguards owed to people without mental capacity in healthcare. Government, and society in general, has an important new challenge.

This decision steers away from the approach to deprivation of liberty taken by the Percy Commission of 1957, which sought legal informality for people without mental capacity who did not object to the offer of healthcare. Cheshire West harks back to the “legalism” of the Lunacy Act of 1845, enacted when society sought to counter …

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