A landmark Supreme Court hearing that could redefine the rights of hundreds of thousands of disabled and autistic people has concluded, with major charities warning the government’s legal approach is putting “the freedom, safety and rights of thousands of disabled people” at risk.
The case centres on the 2014 Cheshire West ruling, which created the so-called “acid test” for deciding when a person is deprived of their liberty.
The ruling established that people who are under continuous supervision and control, and are not free to leave their placement, such as those in care homes, supported living or rehabilitation units, are legally deprived of their liberty and must have independent checks on whether those arrangements are justified.
The Attorney General for Northern Ireland (AGNI) has asked the Supreme Court to revisit that test, arguing that some individuals could be said to “consent” to their confinement through their “wishes and feelings”, and are therefore not “deprived of their liberty”.
The Department of Health and Social Care (DHSC) has formally supported the reference, going further by arguing that some individuals could be said not to be “confined” where they are content with their confinement.
Both ask the court to overturn Cheshire West, a move disability rights groups have called “deeply troubling”.
In a joint statement issued after the hearing, Mencap, Mind and the National Autistic Society said: “We continue to have deep concerns about the AGNI’s and the Department’s arguments. The changes being proposed are significant, and put at risk the freedom, safety, and rights of thousands of disabled people.
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“The existing ruling – known as Cheshire West – provides key safeguards for people in highly restrictive settings like rehabilitation units or community placements like supported living or care homes.
“The protections make sure people have someone to advocate on their behalf, that they can challenge their living arrangements, and that their care needs are dictated by what’s best for them, not the convenience of others.”
The organisations said: “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.”
Ahead of this week’s hearings, health minister Stephen Kinnock said the government’s priority was “safeguarding the vulnerable and protecting their rights”, describing plans for new Liberty Protection Safeguards to replace the current system.
“There is currently a shameful backlog in the system of unprocessed cases under the current system, which means that people’s rights are not being protected,” he said. “At the same time, we know that many people in the system and their families find these intrusive assessments distressing.
“This is about ensuring we are fully focused on the most vulnerable people in our society and their families – understanding their needs, ending the maze of referrals and paperwork, and delivering the best protections and safeguards possible.”
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A public consultation on the new safeguards will launch next year, jointly run by the DHSC and Ministry of Justice, aiming to reduce the backlog of more than 123,000 unprocessed Deprivation of Liberty Safeguards cases and modernise protections under the Mental Capacity Act.
The Supreme Court’s decision is expected early next year.
