Disability charities are bidding to defend the landmark Cheshire West judgment on deprivation of liberty in a Supreme Court case that will be heard next month.
Mencap, Mind and the National Autistic Society have applied to intervene in the case brought by Northern Ireland's top legal officer, who is aiming to amend Cheshire West.
The charities fear such changes would create confusion and result in the human rights of many disabled people being breached.
European Convention on Human Rights
Attorney General for Northern Ireland Brenda King has asked the Supreme Court to rule whether proposals from the region's minister of health to amend its Deprivation of Liberty Safeguards code of practice are compatible with Article 5 of the European Court of Human Rights (ECHR) - the right to liberty.Under Article 5, a person of "unsound mind" may be deprived of their liberty but only through a lawful procedure, such as the DoLS in Northern Ireland or their equivalent in England and Wales.
"Unsound mind" encompasses people who lack capacity to consent to their confinement for the purposes of care and treatment due to a mental impairment.
Cheshire West and its impact
The Cheshire West judgment, in 2014, defined a deprivation of liberty as occurring when a person was under continuous supervision and not free to leave their location.This widened the definition previously set out in case law, rendering irrelevant issues previously held to be salient, such as the purpose of the arrangements, their relative normality given the person's level of disability and whether the person was objecting.
The Northern Ireland DoLS code of practice currently follows Cheshire West, such that the safeguards are required if the person is under continuous supervision and control and not free to leave, and lacks capacity to consent to their confinement.
Proposed change to Northern Ireland's DoLS regime
The minister of health, Mike Nesbitt, wants to revise the code so that a person can give valid consent to their confinement through the expression of their wishes and feelings, even though they lack capacity to do so.As a result, they would not be covered by Article 5, so no deprivation of liberty (DoL) authorisation would be required.
The attorney general believes the change is compatible with the ECHR.
A spokesperson for the Department of Health in Northern Ireland said the proposal, if endorsed by the Supreme Court, could result in a reduction of about 25% in the 4,000 people subject to the DoLS in Northern Ireland.
'Giving consent through wishes and feelings'
She said that "giving consent through an expression of wishes and feelings going beyond mere acquiescence" included, but was not limited to, "not seeking to leave their place of residence and being very accepting of care and treatment that amounts to a DoL"."It is important that it is objectively determined that they are verbal and/or behave in a way which reflects that they are happy to reside in the place they are in and receive the care and treatment being provided," she added.
The spokesperson said many people within this group were "put forward for repeated authorisations as their conditions and circumstances will never materially".
Concerns over repeat assessments
She said such repeated assessments constituted, potentially, "unnecessary and disproportionate interferences with their Article 8(1) ECHR rights" (the right to private and family life), and those of their family members.The spokesperson also highlighted the use of public money and staff resource on these assessments, and added that "the approach required by Cheshire West may undermine person-centred care planning, because it applied "irrespective of whether the confinement is in line with the person’s wishes and feelings".
However, Mencap, Mind and the National Autistic Society believe that it is the approach proposed by the Northern Ireland administration that would undermine the rights of disabled people.
The law firm Irwin Mitchell is representing Mencap and the National Autistic Society and working with Mind, which is being instructed by its in-house legal team.
Charities' concerns about human rights implications
Mathieu Culverhouse, a partner at Irwin Mitchell who specialises in public and human rights law, said: "[The 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.”Should the Supreme Court overhaul Cheshire West, the ruling would not only affect the law on deprivation in Northern Ireland, but impact on provisions in England and Wales, which are the responsibility of the UK government.
A spokesperson for the Department of Health and Social Care said: "The government is aware of the case and is considering the Northern Ireland reference and any implications it may have for the UK government.”
The case will be heard on 20 October 2025.
