Supreme Court ruling set to remove vital safeguards for hundreds of thousands of disabled people

Campaigners have expressed “deep concern” over a ruling by the Supreme Court that could “fundamentally” alter the lives of hundreds of thousands of disabled people who rely on the health and social care systems.

This week’s ruling has over-turned a 2014 decision by the same court – which became known as the Cheshire West ruling – which had widened the definition of who would be protected by the system that protects service-users who are unable to consent to restrictions placed on their liberty.

Campaigners say the latest Supreme Court ruling has “dismantled” those protections.

The court was hearing a case brought by the Northern Ireland attorney general, which relates to a proposed code of practice for the Deprivation of Liberty Safeguards (DoLS) system.

The new Northern Ireland code of practice says that even if a disabled person did not have capacity to consent to their living arrangements – for example in a care home or supported living – they could still give consent to those arrangements by expressing their “wishes and feelings”.

The Cheshire West ruling 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”.

These checks are supposed to be carried out through the DoLS system, although there are huge backlogs.

The Supreme Court (pictured) ruled unanimously this week that the proposed new code of practice in Northern Ireland was compatible with article five – which covers the deprivation of liberty – of the European Convention on Human Rights.

It found that a disabled person needed only a basic level of awareness and consciousness of their living arrangements that was enough for them to be able to communicate whether they were happy or unhappy with them.

It found six ways in which the Supreme Court Cheshire West ruling had been wrong.

The judgement by the seven justices that heard the case could lead to most of those disabled people currently protected by the DoLS system losing that protection.

The 2014 ruling led to an increase in DoLS referrals from 13,700 in 2013-14 to 322,455 in 2023-24 and a backlog of 123,790 cases.

The number of DoLS referrals is likely to fall dramatically following this week’s judgement.

Cheshire West led to the drawing-up of the Liberty Protection Safeguards (LPS) system, based on a report by the Law Commission.

The last government had originally planned to bring in LPS in October 2020, but its implementation was repeatedly delayed by Conservative ministers.

Care minister Stephen Kinnock announced last October that there would be a new consultation on the new LPS system “in the first half of next year”.

It is not yet clear where this week’s judgement leaves this consultation.

But a Department of Health and Social Care spokesperson said: “We respect the Supreme Court’s decision on the meaning of ‘deprivation of liberty’.

“Our priority has always been safeguarding vulnerable people and ensuring their rights are protected.

“We will now consider the judgment carefully and its potential impacts and will set out guidance to the sector shortly.”

A spokesperson for Inclusion London said: “We are deeply concerned about the Supreme Court ruling on Deprivation of Liberty Safeguards as it will lead to many more people with learning difficulties and autistic people being deprived of their freedoms based on disability alone.

“We are deeply concerned that the judgement will allow for increased restraints and restrictions to continue [and for] people with learning difficulties and autistic people to be abused and to be locked up forever regardless.

“Very frightening times.”

Among others commenting on this week’s judgement, in a joint statement, were the charities Mencap, Mind and National Autistic Society, which intervened in the case.

They said the judgement “sets us back decades and removes safeguards that history shows us are vital for disabled people”.

They believe the “vast majority” of people currently protected by the DoLS system in the UK will “likely see their existing checks and independent inspections cancelled”.

They added: “Stripping away these safeguards makes it easier for abuse and neglect to go unnoticed behind closed doors.

“A litany of previous wrongdoings demonstrate how closed cultures, lack of independent oversight and restrictive care can lead to abuse scandals and decisions like this fly in the face of everything we’ve learnt.”