Government call for Supreme Court to overturn Cheshire West ruling on deprivations of liberty prompts furious response from charities

The Department’s position has been strongly criticised by the three charities intervening in the case, the National Autistic Society, Mencap and Mind.

Over three days next week (20-22 October), a rare seven-justice panel will specifically 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 in Northern Ireland 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 Northern Ireland Act 1998 limits the Minister’s powers so that the proposed revision to the Code will only be lawful if it is compatible with the rights protected by the European Convention on Human Rights. These include the right to physical liberty guaranteed by Article 5.

The Attorney General for Northern Ireland is said to consider 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.

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 Cheshire West, the Supreme Court held that Article 5 applies to persons who cannot consent to their confinement because they lack mental capacity. This is the case even where the person who lacks capacity indicates that they are content with the arrangements for their care and treatment.

In her leading judgment, the then Deputy President of the Supreme Court, Lady Hale, set out the ‘acid test’ of whether a person is deprived of their liberty. She held that a person is deprived of their liberty if:

1. they are subject to continuous supervision and control, and not free to leave (the ‘objective element’), and
2. they lack the mental capacity to give a ‘valid consent’ to their confinement (the ‘subjective element’).

At next week’s hearing the Attorney General for Northern Ireland is asking 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.

Last month, the National Autistic Society, Mencap and Mind were granted permission to intervene. The Secretary of State for Health and Social Care, the Mental Welfare Commission for Scotland, and the Official Solicitor have also been given permission to intervene.

The Supreme Court yesterday published the Secretary of State for Health and Social Care’s written case alongside other parties’ written cases.

It has now emerged that the Secretary of State will argue that Cheshire West was wrongly decided, and went far beyond caselaw of the European Court of Human Rights.

Inviting the Supreme Court to depart from the Cheshire West ruling, the Secretary of State says: “The ECtHR has never adopted an ‘acid test’ and continues to carry out a multi-factorial analysis.”

The written case says that if the Supreme Court does not accept that proposition, then the Secretary of State will invite the Court to accept the Attorney General of Northern Ireland’s submissions on valid consent, subject to caveats.

The Secretary of State’s written case says: “As a result of Cheshire West, approximately four hundred thousand incapacitated people in England and Wales are now deprived of liberty on an annual basis. The United Kingdom is in the throes of what has been termed ‘a great confinement’ – the mass authorisation of deprivation of liberty of a significant proportion of the disabled population. If an individual is deprived of liberty, a lawful process to authorise the same will confer extensive safeguards upon them. However, this cohort includes many whose lives are enriched by the care and treatment provided to them, who are happy and fulfilled in the place where they live, and do not object to the restrictions that may be in place.

“Cheshire West has created the ‘paradoxical outcome’ that a person who is positively happy with their living arrangements, and has no desire to leave them, has ended up in a situation where they are being deprived of liberty by the State. They face significant State intrusion into their lives, and those of their families, as a result of the need to authorise that deprivation of liberty. The Secretary of State is anxious to ensure that those who require the protections of Article 5 receive them, without needless intrusion into the lives of those who do not.”

The written case goes on to say that the Supreme Court “took a wrong turn” in Cheshire West. It also claims: “Further, there are now extensive safeguards for incapacitated persons who are provided with care and support, which were not in place at the time of Cheshire West [set out in an annex]. As such, the ‘policy rationale’ for extending the scope of deprivation of liberty in order to provide checks on the vulnerable is much reduced.”

The National Autistic Society, Mencap and Mind have described the Department of Health and Social Care’s stance as “deeply troubling”.

In a statement issued yesterday ahead of the hearing and before publication of the Secretary of State's written case, the three charities described the Department’s actions as “unprecedented” and “go beyond the Northern Ireland AG’s reference”.

The charities said: “[…] The Department lacks standing in introducing these new arguments; has intervened late in the case, meaning there is inadequate time for the parties to respond and for the lived experience of people to be properly heard; and that the intervention significantly broadens the scope of the case, raising complex legal and human rights questions that could impact the safeguarding of hundreds of thousands of people with learning disabilities, autistic people, and those with other impairments.”

The charities called on the Secretary of State, Wes Streeting, to:

• make a public statement about what the Department is asking the Supreme Court to do,
• withdraw the expanded scope of the Department's intervention, which could otherwise radically change disability services outside the usual legislative process,
• seek the Care Quality Commission’s views on how the proposal would affect independent inspection of institutions and the prevention of closed cultures.

Representing the charities, Rebecca Chapman of Irwin Mitchell Solicitors, said: “The Cheshire West case provided important protections for some of the most vulnerable people in society – those who have done nothing wrong but have restriction on their freedom because of their care needs. Over 10 years after that judgement, this case is a re-examination of those protections. Any such changes should be carefully planned, considered, risk assessed and should be made in accordance with the democratic process, in an open and transparent way.”

A Department for Health and Social Care spokesperson said: “The department can’t comment on the details of active legal proceedings.

“We have a responsibility to ensure the legal framework operates effectively and we are committed to protecting the rights and safeguarding of all people, including those with learning disabilities and autism.

“We will continue to work with stakeholders to ensure appropriate protections remain in place.”

Next week’s hearing will be before Lord Reed, Lord Sales, Lady Simler, Lord Hodge, Lord Stephens, Lord Lloyd-Jones and Lady Rose.

See also: Last week, Lucy Series, an Associate Professor at the University of Bristol, set out what is at stake following the upcoming hearing.