Supreme Court abolishes ‘acid test’ in determining deprivation of liberty for disabled people
Yesterday, the UK Supreme Court decided a reference from the Attorney General of Northern Ireland, which will have a significant impact on the rights of disabled people across the UK. The judgment overturns the court’s ‘Cheshire West’ decision from 2014 which established the acid test to determine whether a person is deprived of their liberty: is the person under continuous supervision and control, and are they free to leave? If yes, the person was considered deprived of their liberty, and would then be subject to safeguards to protect against abuse and neglect.
Yesterday’s decision abolishes the acid test. The test is now “multifactorial” and will involve an assessment of the purpose and circumstances of the person’s living arrangements, and an evaluation of their wishes. If the person indicates they like their living arrangements, they can be deemed to have consented to it, despite the person lacking capacity to make that decision (the court has introduced into English law the concept of incapacitous consent). In such a case, there will be no deprivation of liberty and therefore the person will not be entitled to safeguards such as a local advocate - a ‘relevant person’s representative - and non-means tested legal aid to make an application to the Court of Protection for scrutiny of the living arrangements.
These widespread changes, described by the disability rights community as the biggest rollback of disability rights in a generation, were made by the Supreme Court in proceedings where there was no appellant, no factual matrix and no Court of Appeal judgment. There has been no legislative scrutiny, no impact assessment, no public debate and no consultation with disabled people and their families.
The aftermath of yesterday’s judgment is difficult to predict, but the Department of Health and Social Care and the Ministry of Justice are expected to change the DoLS Forms and rapidly consult on a revised Code of Practice to the Mental Capacity Act 2005.
In the Supreme Court, Oliver Lewis of Doughty Street Chambers with Victoria Butler-Cole KC and Arianna Kelly at 39 Essex Chambers were instructed by Irwin Mitchell on a pro bono basis to represent the three charity intervenors: Mind, Mencap and the National Autistic Society. The charities’ submissions are here.
The judgment can be found here, along with the press summary and joint statement. Oliver’s video explainer is here. For information about Oliver’s practice, please contact his clerk Emily Norman.
