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

Earlier this year the Attorney-General for Northern Ireland made a reference to the Supreme Court over whether proposed changes to Northern Ireland's Deprivation of Liberty Safeguards Code of Practice that differ from the approach set out in Cheshire West nevertheless satisfy Article 6 of the European Convention on Human Rights (the right to liberty).

A rare seven-justice panel comprising Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lord Sales, Lord Stephens, Lady Rose and Lady Simler will consider the reference on 25 October.

The charities wish 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.

Irwin Mitchell partner Mathieu Culverhouse said: “[The Cheshire West judgment] said that if a person who lacks capacity to decide on their residence or care is under continuous supervision and control of others, for example carers, and is not free to leave, that person is ‘deprived of their liberty’. That person has access to safeguards that includes an advocate, and an option to go to court to challenge the lawfulness of their deprivation of liberty.

“The Northern Irish administration has asked the Supreme Court to amend the Cheshire West ruling, so that if a person who lacks capacity to decide on residence but nevertheless consents to their living arrangements - by expressing feelings ‘beyond mere acquiescence’ or which might count as ‘a positive attitude’ about their placement - then the law would not classify them as being deprived of their liberty.”

He said the three charities are concerned that changing the interpretation of deprivation of liberty “will create confusion and will breach the human rights of people with mental health problems, learning disabilities and/or autism and will result in procedural safeguards being removed from people who need them to ensure that their care arrangements are not overly restrictive”.

The specific issue referred to the Supreme Court is: “Whether the Minister of Health has power to revise the Deprivation of Liberty Safeguards Code of Practice issued under s.288 of the Mental Capacity Act (Northern Ireland) 2016 (‘the 2016 Act’) so as to provide that, in the context of the delivery of care and treatment, individuals aged 16 and over with impaired decision-making may be understood to be consenting to confinement through the expression of wishes and feelings, so that their circumstances do not fall within the scope of Article 5 of the European Convention on Human Rights (‘ECHR)’)”

Under the Northern Ireland Act 1998, a “devolution issue” (including whether an act of the government of Northern Ireland would be invalid as breaching the rights protected by the ECHR) may be referred to the Supreme Court for determination.