UK Supreme Court hears disability rights case

It is permissible under the European Convention on Human Rights (ECHR) for the law to say that a person who lacks capacity to consent to their care arrangements can nevertheless give valid consent to those arrangements if they “actively express positive wishes and feelings about the arrangements in place”? 

That was the question that the Supreme Court grappled with this week, having been asked it by way of a reference from the Attorney General of Northern Ireland (AGNI). Submissions made on behalf of the UK government went much further than the AGNI, arguing that the 2014 Supreme Court judgment known as “Cheshire West” was wrongly decided, and urged the court to overturn it. 

The judgment, which is expected to be handed down in the first half of next year, has UK-wide implications for people with learning disabilities, autistic people, as well as those with mental health problems, brain injury or dementia. 

The court permitted Mind, Mencap and the National Autistic Society to intervene in the case. The charities argued that the concept of “incapacitous consent” was legal nonsense both under the ECHR and in UK law, would be unworkable in practice, and would deny safeguards from people who are vulnerable to harm including duress, control, exploitation, overly restrictive care, neglect and abuse. The Official Solicitor to the Senior Courts of England and Wales also intervened in the case and her submissions were aligned to those made on behalf of the charities. 

Counsel for the charities were Victoria Butler-Cole KC (39 Essex Chambers), Oliver Lewis (Doughty Street Chambers) and Arianna Kelly (39 Essex Chambers). They were instructed by Irwin Mitchell LLP. The legal team acted on a pro bono basis. 

The parties’ written cases, and recordings of the hearings can be accessed here. The case was reported by the BBC and Sky News. 

For more information about Oliver’s practice, contact Court of Protection Practice Manager Emily Norman.