A landmark judgment in Northern Ireland will have implications for the whole of the UK, after the Supreme Court overruled consent precedent set in Cheshire West.
In a decision which has left many charities reeling, the Supreme Court has approved a revision to the Northern Irish Deprivation of Liberty Safeguards Code of Practice so that persons aged 16 and over who lack capacity to make decisions about their care and treatment can give valid consent to their confinement through the expression of their wishes and feelings.
Under the previous Cheshire West precedent if someone lacked the mental capacity to consent to their care and living arrangements, is under continuous supervision and control, and is not free to leave, they were legally deprived of their liberty, therefore triggering safeguards under the Code of Practice. Safeguards included requiring an independent assessor to regularly inspect care homes, supported living arrangements, and locked units to ensure any placement is safe, justified, and in the person’s best interests.
The key test to be applied is if someone is under continuous supervision and control, is not free to leave and cannot consent to the arrangements, they are therefore deprived of their liberty. This is understood to apply to people with a severe learning disability or dementia, those in locked rehabilitation units or supported living and care homes.
Northern Ireland’s health minister had sought to revise the code of practice to enable a person to give valid consent through the expression of their wishes and feelings, even if they lack capacity.
The Supreme Court decision found the Cheshire West convention “wrong in principle”, in a decision with immediate ramifications: the court confirmed there would be no grace period and the approach in Cheshire West must not be followed with immediate effect; it is expected official guidance will be forthcoming soon.
The decision noted a lack of legal capacity is not the same as lack of valid consent for the purposes of Article 5 of the Human Rights Act. People may still have awareness of their arrangements and are able to express contentment with them, the ruling found. A multifactorial approach in assessing whether a deprivation of liberty has occurred must be undertaken, reviewing “type, duration, effects and manner of implementation of the measure in question” – a position Cheshire West “lost sight of” according to the ruling.
National charities Mencap, Mind, and the National Autistic Society have reacted “with alarm” to the ruling, which they say is “regressive” and “dismantles (the) landmark 2014 (Cheshire West) legal framework”.
In a joint statement, the charities warned the majority of people currently protected by the DoLS safeguards system in the UK will see their existing checks and independent inspections cancelled, and said the ruling devalues the fundamental rights of individuals with profound cognitive disabilities. The new interpretation implies they cannot be deprived of liberty because their condition limits their ability to experience it.
“This judgement sets us back decades and removes safeguards that history shows us are vital for disabled people,” the charities said. “By removing independent checks, advocacy, and automatic access to legal aid, the Court has closed the gateway to justice and support for many who need it most. Stripping away these safeguards makes it easier for abuse and neglect to go unnoticed behind closed doors. A litany of previous wrongdoings demonstrate how closed cultures, lack of independent oversight and restrictive care can lead to abuse scandals and decisions like this fly in the face of everything we’ve learnt.
“We are calling on the UK government to act with urgency to issue interim guidance to local authorities and health and care providers to prevent them being plunged into chaos by this ruling. It should urgently bring in new laws and guidance that strengthens protections for some of the people who are most at risk. This should include clearly explaining how disabled people and their families can challenge breaches of their rights and get the advocacy and support they need.
“To the many people that will be affected by this ruling now and in the future, we stand with you and you are not alone. This decision devalues the rights and dignity of disabled people in this country.”
