‘…the majority in Cheshire West [[2014] UKSC 19] erred in their interpretation of the Strasbourg jurisprudence in relation to the meaning of deprivation of liberty… the European court is clear in adopting the multifactorial approach and giving weight to valid consent…’ – ‘Liberty means the same thing for everyone… it means physical liberty, including the freedom to go where one pleases… For those who are unable to do this because they are unconscious, in a minimally conscious state, or so profoundly disabled that they cannot conceptualise leaving let alone physically achieve this, they are not being prevented by a third party from doing something and are not being deprived of anything’ and ‘…if they have a basic level of awareness and consciousness of their living arrangements that is sufficient to enable them to know and communicate whether they are happy or unhappy with them, they may be treated as able to give or withhold valid consent’: https://caselaw.nationalarchives.gov.uk/uksc/2026/16
Charles Cooper | Barrister & Mediator 