Supreme Court judgement on Deprivation of Liberty: CBF statement

This judgement takes immediate effect and overrules existing deprivation of liberty safeguard (DoLs) guidance.  In practice, families may see existing DoLs checks and inspections cancelled and there will be a lack of clarity for a while, as we wait for revised guidance to be published. 

Cheshire West confirmed the fundamental principle that the right to liberty is universal.  It determined that someone is deprived of their liberty if they are under continuous supervision and not free to leave. This principle, known as the ‘acid test’, applied whether or not someone ‘objected’ to their living arrangements. 

This new judgement says that, although the ‘acid test’ may be a relevant factor, taken on its own it is not enough to determine whether someone has been deprived of their liberty.  

Mencap, the National Autistic Society, and Mind, who intervened in this case to argue that the ‘acid test’ should continue to be used, have issued a joint statement which you can read here.  

Dr Oliver Lewis, one of the barristers who represented the charities in their intervention, has produced a video summary of the decision, which you can watch here. 

What happens next? 

Each nation of the UK will need to consider what impact this judgement has on their domestic policies. 

The judgement followed an application by the Attorney General for Northern Ireland, on the grounds that the Minister for Health for Northern Ireland wanted to revise the Northern Ireland Mental Capacity Act Code of Practice to say that even if a person lacks capacity to make decisions about their care and where they live, they can be said to have ‘validly consented’ to their living arrangements if they express happiness with these. Following this judgement, we expect that this change will be made to the Northern Ireland Code of Practice. 

The Department of Health and Social Care announced last year that it intends to launch a consultation on Liberty Protection Safeguards, which will replace the existing Deprivation of Liberty Safeguards in England and Wales. This consultation, which will be run jointly with the Ministry of Justice, is expected to lead to new guidance on how local authorities and other bodies should determine whether people are deprived of their liberty. 

We will continue to share information about any changes resulting from this judgement as more information becomes available. 

Jacqui Shurlock, CEO of The Challenging Behaviour Foundation, said: 

“People with a learning disability have the same rights as everyone else. The implication behind this judgement – that people can’t be deprived of liberty if their condition limits their ability to experience it – is offensive and dehumanising.  

We are extremely concerned that legal safeguards designed to protect the most vulnerable are being dismantled, including the right to advocacy and access to non means tested legal aid. The Deprivation of Liberty Safeguards (DoLs) system was imperfect and people have been experiencing huge delays but removing significant numbers of people from the protection of DoLs with no clear safeguards in its place leaves individuals at risk of restrictive practices and abuse.  

We support the call for urgent guidance and new legislation to clarify the safeguards and protections that will be put in place for people with severe learning disabilities.” 

Further information 

• The press summary for the Supreme Court’s judgement is here. 

• The full judgement can be found here. 

CBF Family Support Service 

We are aware that this judgement may be of serious concern to family members of people with severe learning disabilities. While we are unable to provide legal advice on this ruling, if you have concerns or would like support, you can contact our Family Support Service by calling 0300 666 0126 or emailing support@thecbf.org.uk.  

We are open at the following times: 

Monday – Thursday: 9am – 5pm | Friday: 9am – 3pm 

We can provide information and support about the needs of your relative with a severe learning disability whose behaviour may be described as challenging. We can also help you navigate the complex health, education and social care systems. 

Please note we are a small support service so you may not be able to get support straight away. We will support families with urgent concerns as a priority.   

Professionals are also welcome to contact the CBF.