The UK government has urged the Supreme Court to overturn its landmark Cheshire West judgment on deprivation of liberty in a case that will be heard next week.
In an intervention in the case, which will be heard from 20-22 October, the Department of Health and Social Care (DHSC) said the 2014 judgment was "clearly wrong" because it departed from European Court of Human Rights (ECtHR) case law in relation to the definition of a deprivation of liberty.
However, its intervention has been strongly criticised by charities Mencap, Mind and the National Autistic Society as "deeply troubling" and risking the removal of vital safeguards from thousands of disabled people.
Cheshire West's impact
Cheshire West significantly widened the definition of a deprivation of liberty compared with what had previously been the case in England and Wales, leading to a huge spike in the number of cases requiring authorisation through the Deprivation of Liberty Safeguards (DoLS) or a Court of Protection order.The number of DoLS applications made in England in 2023-24, 332,455, was 25 times the number received by councils a decade earlier, before the Supreme Court handed down Cheshire West.
In its intervention, the DHSC said that the 'acid test' for a deprivation of liberty laid down in Cheshire West - that a person was under continuous supervision and control and not free to leave their place of confinement - was not consistent with ECtHR rulings before or since 2014.
Landmark ruling 'not consistent with European case law'
According to the DHSC, the ECtHR has never used a single test for determining whether a person was deprived of their liberty for the purposes of Article 5 of the European Convention of Human Rights (ECHR), which concerns the right to liberty.Instead, it has considered the person's concrete situation, with reference to multiple factors, some of which went beyond the acid test, such as whether the person was coerced, subject to physical or chemical restraint or had been forcibly returned if they had tried to leave.
While the factors in the acid test were a necessary condition of a person being deprived of their liberty, they were not sufficient, argued the DHSC.
As a result of Cheshire West, the department argued, many people who are happy in the place where they live and have no desire to leave must be subject to the DoLS, if they are in a care home, or a Court of Protection case, if they are 16 or 17 or in a domestic setting, to authorise their confinement. The DHSC said this had resulted in "needless intrusion" into their lives.
Northern Ireland's bid to widen definition of consent
The DHSC's intervention comes in a case brought by the Attorney General of Northern Ireland (AGNI), Brenda King, who is urging the Supreme Court to depart from Cheshire West in a different way, by widening the grounds by which a person can validly consent to their confinement.Under Cheshire West, a person must have the capacity to consent, under the Mental Capacity Act 2005, for this to be valid.
The AGNI is bringing the case to enable Northern Ireland's Department of Health (DoH) to amend the region's DoLS code of practice so that a person can give valid consent through the expression of their wishes and feelings - going beyond mere acquiescence - even though they lack relevant capacity.
In a statement on the case, the DoH said this 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".
Legal change would cut numbers subject to DoL procedures
If endorsed by the Supreme Court, this could result in a reduction of about 25% in the 4,000 people subject to the DoLS in Northern Ireland, the DoH has estimated.While the DHSC has taken a different approach to the AGNI, it said both involved taking into account the wishes and feelings of the person confined, either in determining whether they were deprived of their liberty under Article 5 (the DHSC) or whether they could validly consent to their confinement (the AGNI).
Both would also result in many fewer people being subject to the DoLS in the relevant country or region or to a court process.
In its intervention, the DHSC said that, should the Supreme Court reject its preferred approach, it should endorse the AGNI's.
Charities' defence of Cheshire West
However, in their own intervention in the case, Mencap, Mind and the National Autistic Society (NAS) heavily criticised the DHSC's intervention, on the grounds that:- The issue of the definition of a deprivation of liberty was no part of the AGNI's case, and the DHSC had no power to ask the Supreme Court for a determination of a legal issue in the abstract.
- It would be "procedurally unfair and improper" to seek to revisit Cheshire West where interested parties have not had the opportunity to make representations.
"There, the ECtHR considered that the 'key factor' in considering whether a person was deprived of his liberty was that his carers 'exercised complete and effective control over his care and movements'," and that it was not relevant that he was considered to be complying, the charities added.
'Thousands of disabled people would be put at risk'
In a joint statement on the DHSC's intervention, Mencap, Mind and the NAS said: "Any rewriting of the law around mental capacity should be done through Parliament, in an open transparent and consultative process."The Cheshire West judgment has ensured for over a decade that when someone is in such restrictive care, they are entitled to independent scrutiny and a clear route to challenge the arrangements. This ensures the restrictions are truly in their best interests, and not just convenient for others.
“Any change that would remove those protections would mean public bodies would mark their own homework, with no outside check, and would likely have serious consequences for the freedom, safety, and rights of thousands of disabled people, putting them at risk of abuse, neglect or harm.”
Northern Ireland's approach 'would remove safeguards'
The charities have also rejected the AGNI's case, arguing that it deviated from the ECtHR's approach to valid consent, which, they said, was based on mental capacity.They added that, under the proposed revised DoLS code of practice in Northern Ireland, a person would be able to give valid consent if there was "evidence of a positive attitude to the care arrangements", which the charities described as an "entirely new test".
They said that the AGNI's preferred approach would result in the "removal of vital safeguards" for thousands of disabled people who, as a result, would no be able to challenge their confinement.
"Defining a de facto detained or confined person as being, as a matter of law, not deprived of their liberty, does not reduce any restrictions on them in reality – it only removes the safeguards the person has against arbitrary or unlawful detention, access to independent advocacy/representation, and access to a court to challenge the lawfulness of that detention," the charities added.
By contrast, the AGNI has argued that ECtHR case law bases consent on the person's "subjective perception of the arrangements", meaning that a focus on the person's wishes and feelings was consistent with the UK's obligations under Article 5.
DHSC 'committed to protecting rights of disabled people'
In a comment on its intervention, a DHSC 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.”
