Our charity has joined Mencap and Mind to issue the following statement at the conclusion of the Supreme Court hearing which could reshape the legal safeguards for people who are deprived of their liberty.

The charities believe the rights of thousands of disabled people, especially those who cannot speak up, challenge decisions, or seek help when things go wrong, have been put at risk in the case. 

Mencap, Mind and National Autistic Society joint statement 

"It is now for the court to decide the outcome of this matter.  

“We continue to have deep concerns about the AGNI’s and the Department's arguments. The changes being proposed are significant and put at risk the freedom, safety, and rights of thousands of disabled people. 

“The existing ruling – known as Cheshire West - provides key safeguards for people in highly restrictive settings like rehabilitation units or community placements like supported living or care homes. The protections make sure people have someone to advocate on their behalf, that they can challenge their living arrangements, and that their care needs are dictated by what’s best for them, not the convenience of others. 

“Mencap, Mind and National Autistic Society will continue to speak up for those affected, standing up for the rights and freedoms of people at risk of deprivation of liberty.” 

Changing the definition of deprivation of liberty 

A person is said to be deprived of their liberty if they are under continuous supervision and control, are not free to leave and cannot consent to this - this includes people in community treatment placements like supported living or care homes or people locked in rehabilitation units. 

The current definition of deprivation of liberty was determined in 2014 through a landmark Supreme Court ruling known as Cheshire West. The legal safeguards established in Cheshire West ensure an independent person checks that the living arrangements which people are being held under are justified, lawful, and in the person’s best interests. 

The three charities intervened in the case originally brought by the Attorney General for Northern Ireland (AGNI) who is seeking to broaden the ways in which people can be said to consent to their confinement. The AGNI is hoping to change the rules so that people can consent to their confinement through “expressions of wishes and feelings”, which would overturn Cheshire West. 

The Department for Health and Social Care latterly intervened in the case also asking the Supreme Court to overturn Cheshire West, in a move the three charities described as “deeply troubling” and which they said could impact the safeguarding of hundreds of thousands of people with learning disabilities, autistic people, and those with other impairments.  

The DHSC supports the AGNI’s proposals and goes even further. It argues that if a person’s “wishes and feelings” appear to align with their confinement, then they should no longer be considered ‘deprived of their liberty’. In other words, the state could confine someone, but if that person seems content or compliant, it would not count as a ‘deprivation of liberty’ — and in those circumstances the state would not need to provide various statutory safeguards to them. 

Further information

Read our previous statement on this case.