Mencap, Mind and the National Autistic Society say that “deeply troubling” legal action by the Department for Health and Social Care places the rights of thousands of disabled people at risk - especially those who cannot speak up, challenge decisions, or seek help when things go wrong.

The Department has intervened in a Supreme Court case brought by the Attorney General of Northern Ireland which is seeking to fundamentally change legal safeguards for people who lack capacity. The Department is asking the Supreme Court to set aside a 2014 ruling known as ‘Cheshire West’, which extended legal protections to people who couldn’t choose where to live, and made sure those people had a right to challenge the decisions others had taken for them. A hearing is scheduled for October 20.

In its 2014 ruling, the Supreme Court established that if someone is under continuous supervision and control, is not free to leave and cannot consent to this, they are ‘deprived of their liberty’. This applies to people in locked rehabilitation units or community placements such as supported living or care homes.

The legal safeguards established in the ‘Cheshire West’ case in 2014 ensure an independent person checks that such arrangements are justified, lawful, and in the person’s best interests. The Supreme Court’s decision could have wide-reaching implications, potentially removing some of these important legal protections for people across the UK.

Unprecedented action by Department of Health and Social Care

The charities say the Department’s actions are unprecedented and go beyond the Northern Ireland AG’s reference.

The charities believe the Department lacks standing in introducing these new arguments; has intervened late in the case, meaning there is inadequate time for the parties to respond and for the lived experience of people to be properly heard; and that the intervention significantly broadens the scope of the case, raising complex legal and human rights questions that could impact the safeguarding of hundreds of thousands of people with learning disabilities, autistic people, and those with other impairments.

The charities are unable to publish the Department’s intervention, and the Department has not released information about what it is asking the Supreme Court to do. The Department’s decision not to make public the change in law it is trying to effect means other stakeholders—including disabled people, their families, and civil society—have no way of discovering or responding to the arguments being made.

The charities are calling on the Secretary of State Wes Streeting to:

• Make a public statement about what the Department is asking the Supreme Court to do
• Withdraw the expanded scope of the Department's intervention, which could otherwise radically change disability services outside the usual legislative process
• Seek the Care Quality Commission’s views on how the proposal would affect independent inspection of institutions and the prevention of closed cultures

Joint statement from Mencap, Mind and National Autistic Society

“This action is deeply troubling. This is far too important a change to be done by the back door. Any rewriting of the law around mental capacity should be done through Parliament, in an open transparent and consultative process.

“The Cheshire West judgment has ensured for over a decade that when someone is in such restrictive care, they are entitled to independent scrutiny and a clear route to challenge the arrangements. This ensures the restrictions are truly in their best interests, and not just convenient for others.

“Any change that would remove those protections would mean public bodies would mark their own homework, with no outside check, and would likely have serious consequences for the freedom, safety, and rights of thousands of disabled people, putting them at risk of abuse, neglect or harm.”

Rebecca Chapman, Irwin Mitchell Solicitors

“The Cheshire West case provided important protections for some of the most vulnerable people in society – those who have done nothing wrong but have restriction on their freedom because of their care needs. Over 10 years after that judgement, this case is a re-examination of those protections. Any such changes should be carefully planned, considered, risk assessed and should be made in accordance with the democratic process, in an open and transparent way. Yet, the SoS has not disclosed its proposals to the public and the court is due to consider the matter on 20 October.”

The following testimony is from Independent Mental Capacity Advocates (IMCA), who advocate for people under the current Cheshire West ruling, a protection that is at risk in this case.

“I worked with an individual for a community Deprivation of Liberty Safeguards (DoLS) application, where all the previous professionals stated P was consenting of care and this was necessary due to the level of restrictions in place. P had also been assessed as lacking capacity.

“When I spoke with P, it was clear they believed everything was too restrictive and wanted to challenge this, but they didn't know they were able to do this. I supported P to challenge the application and re-undergo all Mental Capability Assessments. The outcome was that P had capacity and a DoLS was not needed. P is currently looking for alternative accommodation as they wished to live elsewhere in a less restrictive setting.”