Section two Focus on detention issues custody inspections in its Local Policing+ inspection programme;90 • HMI Prisons inspected the close supervision centres, looking at the CSCs as a discrete system for the first time. It consulted a group of experts to inform the development of specific Expectations (inspection standards) that focused attention on the safeguards and efforts to offset the effects of isolation. NPM members will also use these findings to develop a set of common standards for monitoring isolation and solitary confinement that can be used across all detention settings. De facto detention Across all the jurisdictions, NPM members continue to identify individuals using health and social care services who are subject to de facto detention – deprived of their liberty with a lack of access to proper processes for review of the legality and necessity for the deprivation of their liberty. The 2014 Supreme Court judgment in the cases of P v Cheshire West and P&Q v Surrey County Council91 provides some greater clarity on some circumstances that constitute deprivation of liberty under Article 5 of the European Court of Human Rights (ECHR). People are deprived of their liberty if they: • lack the capacity to make decisions about their care and residence; • are subject to continuous supervision and control under the responsibility of the state; and, • lack the option to leave their care setting. (The Cheshire West test) Previous NPM annual reports described the prevalence of de facto detention. The greatest challenges identified were in health and social care settings. In 2014–15, the UK NPM de facto detention working group sought to focus on how NPM members detect de facto detention in these settings, evaluate the effectiveness of the safeguards to protect these individuals, and identify possible gaps in policy or legislation. For the purposes of the work undertaken in 2014–15, anyone deprived of their liberty according to the Cheshire West test would be considered de facto detained, if that had been done without due process. There are also other cases that amount to de facto detention, including situations where people have capacity to make decisions about their care and residence but are not able to leave the care setting, or have expressed unhappiness about aspects of the care regime, such as restraint. De facto detention by care setting The working group sought examples of de facto detention practice from care settings in each UK jurisdiction. NPM members from two countries responded to the request for information. Responses were received from RQIA, MWCS and CI, with 12 examples of de facto detention evenly spread across care homes, mental health hospitals, mental health hospitals for people with a learning disability, and supported 90 The first such inspection, of the custody centre at Kittybrewster in Aberdeen, again highlighted the lack of access to showers and exercise for detainees. This inspection took place in March 2015 and the report was published in May 2015 (HMICS [2015], Local Policing+ Inspection Programme, Inspection of custody centre located in Aberdeen City Division) at: http://www.hmics.org/publications/local-policing-inspection-programme-inspection-custody-centre-located-aberdeen-city (accessed 14/10/15). 91 The Supreme Court Hilary Term [2014] UKSC 19, at: http://supremecourt.uk/decided-cases/docs/UKSC_2012_0068_ Judgment.pdf (accessed 14/10/15). 47