Supreme Court ruling ‘opens the door to reduced scrutiny’ and ‘warehousing’ of disabled people

Disabled people’s organisations have strongly condemned last week’s ruling by the Supreme Court, which they say has “dismantled” the system that protected service-users who are unable to consent to restrictions placed on their liberty.

One disabled people’s organisation (DPO) warned this week that the ruling has “opened the door for disabled people to be detained in dangerous conditions with severely reduced scrutiny and without independent oversight”.

Another DPO said it had handed public bodies the legal opportunity to “warehouse disabled people if proper social care support is too expensive”.

Last week’s judgement by seven Supreme Court justices means most of the disabled people currently protected by the Deprivation of Liberty Safeguards (DoLS) system are likely to lose that protection.

Kieran Lewis, rights and migration policy manager for National Survivor User Network (NSUN), said that NSUN condemned “in the strongest possible terms” the court’s “dismantling” of legal safeguards that “protect the liberty of hundreds of thousands of disabled people”.

He said: “Without any kind of vote or consultation, the court has opened the door for disabled people to be detained in dangerous conditions with severely reduced scrutiny and without independent oversight.”

NSUN said the Supreme Court ruling followed the weakening of safeguards for those in the immigration detention system and the rollback of trans people’s access to their rights through a new code of practice published by the Equality and Human Rights Commission.

Lewis said: “We must recognise this as an attempt to erode everyone’s fundamental human rights, starting with the most marginalised in our society.

“We cannot accept these decisions being made without open debate, meaningful consultation and detailed analysis of how people will be impacted.”

NSUN called on the UK government to issue interim guidance to local authorities and health and care providers “as soon as possible”, and “to legislate for the genuine protection of disabled people’s rights in close collaboration with disabled people themselves, their organisations, and their families”.

Inclusion Scotland warned that the court’s decision meant “hundreds of thousands of disabled people across the UK can now be treated as if they have ‘consented’ to restrictive care placements, even when they lack the capacity to give informed consent”, which would “remove independent checks, advocacy, and access to legal aid”.

Maia Pace, policy and research officer for Inclusion Scotland, said that many disabled people currently have no choice in their care arrangements.

She said: “Without real options, there is no choice or informed consent.

“Instead, a culture of ‘take what you are given and be grateful’ has taken hold, driven by a lack of resources and a shortage of available alternatives.”

This now hands public bodies a “legal opportunity to warehouse disabled people if proper social care support is too expensive”.

She said the UK Supreme Court had “ignored the reality of systems generated trauma, which can affect disabled people’s ability to complain, as does communication barriers and being uniquely exposed to coercion”.

She added: “Many disabled people have learned that complaining does not help our circumstances, and can sometimes make situations worse.”

Pace said the Scottish government’s planned human rights bill would now “act in opposition” to the Supreme Court’s ruling.

The bill should make it easier for disabled people to complain about public bodies, which would have to meet basic standards of care and would not be able to regress on their commitments to improving the rights of disabled people, said Pace.

But the Supreme Court ruling would “override these aspirations and enshrine regression”, she said.

Inclusion Scotland called on both the Scottish and UK governments to work to “reverse or mitigate” the ruling, and to issue interim guidance that protects disabled people’s rights.

It added: “Scotland’s human rights bill represents a vision where economic, social and cultural rights are upheld.

“As disabled people, we must be treated as active rights-holders not administrative burdens, whose rights are balanced against budgets.

“These two paths are irreconcilable. Scotland must act now to hold the line.”

Among others raising alarm about the impact of the ruling was disabled Labour MP Jen Craft, who told MPs that there was “significant concern that, without further clarification as to whether someone who does not have mental capacity can consent to deprivation of liberty, vulnerable people will be put at significant risk”.

Labour’s new health and social care secretary, James Murray, told Craft on Tuesday that ministers “respect the Supreme Court decision” and added: “We are considering it carefully, and will set out updated guidance shortly.”

One DPO has delivered a more optimistic response to the ruling.

Buckinghamshire Disability Service said the decision was “one of the most significant legal decisions for many years” and “resets the law on deprivation of liberty and overturns long-established case law”, while it is “a massive disability rights issue”.

A BuDS spokesperson said: “New guidance, procedures and practice will have to be introduced across the NHS, in care homes and in many councils.

“Lawyers and courts will have to change and adapt their practice too.”

But BuDS also said that it was “too early to tell whether this decision will be positive or negative for disabled people’s rights”.

It said it was “far too early to be making bleak or cataclysmic predictions” because it would be “a long time before the implications of the court decision are fully understood and implemented”.

Meanwhile, the Care Quality Commission, which regulates health and adult social care in England, said it would “adopt a proportionate approach in our assessments while we work with partners in the health and care system to determine the practical impact of this revised position”.

Last week’s judgement means that a disabled person who does not have capacity to consent to their living arrangements – for example someone in a care home or supported living – could now consent to those arrangements by merely expressing their “wishes and feelings”.

It overrules the previous Cheshire West ruling, which provided far more protection under the law, and found that a disabled person was being deprived of their liberty if they were obliged to live in a particular place “under continuous supervision and control”, and they were not free to leave their homes or move away without permission, and they could not consent to decisions about their welfare.

It also found that such people needed “a periodic independent check on whether the arrangements made for them are in their best interests”.

Picture: The Supreme Court building in Westminster, London