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Brain injury and deprivation of liberty on neurosciences wards: ‘a gilded cage is still a cage’


In March 2014, a UK Supreme Court case, known as Cheshire West, reached a judgement that greatly expanded the group of people in England and Wales who could be considered deprived of their liberty when under the care of the state. This now includes anyone meeting what is known as the ‘acid test’: whether the person is under ‘continuous supervision and control’ and ‘not free to leave’. The case concerned three people with learning disability, living in community residential placements; all were judged to have been deprived of their liberty, despite being apparently content, and having ‘relative normality’ for people in their situation. Many people consider the case to apply to hospital settings. Clearly, many neurosciences inpatients are under ‘continuous supervision and control’. This might include being told when to eat or sleep, what medication to take or being under close nursing observation. Many also are not free to leave because of safety concerns. Inpatients may also be eligible for detention under Mental Health Act—if they have a mental disorder sufficient to warrant this—such as a risk to that person's health or safety, or the safety of others. Thus, we have a confusing combination of two laws that might apply. This article aims to demystify the legal background and apply it to clinical practice in England and Wales and elsewhere.


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