Charities given permission to intervene when Supreme Court reconsiders approach in Cheshire West to deprivations of liberty

The Secretary of State for Health and Social Care has also been granted permission.

On 20 October, the Supreme Court will consider whether the Minister of Health for Northern Ireland has the power to revise the 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.

The Code of Practice is issued under the Mental Capacity Act (Northern Ireland) 2016. It details the process and criteria for authorising the deprivation of a person’s liberty in order to provide them with care and treatment when they lack the mental capacity to consent.

At present, the Code requires that the confinement of persons aged 16 and over for the purposes of care and treatment is formally authorised.

However, the Minister intends to revise the Code so that these persons can give valid consent to their confinement, even though they lack capacity, through the expression of their wishes and feelings.

The Attorney General for Northern Ireland considers that the proposed revision to the Code is compatible with the ECHR because it would take persons who lack capacity but consent to their confinement through the expression of their wishes and feelings outside of the scope of article 5.

However, the proposed revision would take a different approach to consent to that taken by the Supreme Court in P v Cheshire West and Chester Council and another [2014].

In light of this, the Attorney General asks the Supreme Court to confirm that the proposed revision to the Code is compatible with article 5 ECHR and, therefore, within the Minister’s powers.

It has now been confirmed that charities National Autistic Society, Mencap and Mind are to intervene in support of the approach taken in Cheshire West.

Mind is being supported by its in-house team, while law firm Irwin Mitchell is providing pro bono support to Mencap and the National Autistic Society.

Lottie Winson