Supreme Court Ruling Allows Severely Disabled Adults to Consent to Care Without Full Capacity
The UK Supreme Court has ruled that severely disabled people, aged 16 and above, can now provide valid consent to their care arrangements, irrespective of their capacity to make such decisions. This judgement, initiated by the Attorney General for Northern Ireland, will be applied across England, Wales, Scotland, and Northern Ireland.
The Northern Ireland Health Minister, Mike Nesbitt, sought alterations to the code of practice governing deprivation of liberty safeguards for individuals lacking the capacity to consent to care. This move challenges the prior 'Cheshire West' Supreme Court ruling, which established an 'acid test' for deprivation of liberty: continuous supervision and control, inability to leave, and incapacity to consent.
Charities Warn of Human Rights Erosion
Organisations including Mencap, Mind, and the National Autistic Society have issued a joint statement condemning the ruling, asserting it "strips fundamental human rights protections from potentially hundreds of thousands of severely disabled people." They contend the decision could facilitate abuse and neglect by removing independent oversight and access to legal aid, setting back decades of safeguarding efforts.
An estimated 9,000 individuals in Northern Ireland alone are expected to be affected. The ruling permits other UK health departments to re-evaluate their legal frameworks for severely disabled persons' care arrangements.
New Multifactorial Approach
The Supreme Court heard arguments suggesting the 'Cheshire West' ruling imposed an unsustainable administrative burden on health and social care systems. Tony McGleenan KC, representing Northern Ireland's attorney general, submitted that a broader definition would reduce the number of people aged 16 and over with impaired decision-making capacity considered deprived of their liberty, with safeguards then focusing on an individual's known wishes and feelings.
Under the new ruling, a multifactorial approach will determine if someone is deprived of their liberty. Crucially, a person's wishes and preferences will now be considered; unless an explicit objection is registered, their living arrangements are unlikely to be classified as a deprivation of liberty. This shift presents potential complexities for care providers, as individuals' ability to express their attitudes towards care will vary considerably.
The charities are urging the UK government to issue immediate interim guidance to health care providers and to introduce new legislation that strengthens protections for vulnerable individuals, clarifying avenues for challenging rights breaches and accessing advocacy and support.
