UK Supreme Court rules severely disabled people can consent to care arrangements despite lacking capacity

The UK Supreme Court has ruled that severely disabled people aged 16 and over can give valid consent to their care arrangements even if they lack the mental capacity to do so, a decision that applies across England, Wales, Scotland and Northern Ireland.

The judgment, triggered by a case brought by the Attorney General for Northern Ireland, overrules the previous Supreme Court ruling known as Cheshire West. That earlier case had established an 'acid test' for deprivation of liberty: if someone is under continuous supervision and control, is not free to leave, and cannot consent to this, they are considered deprived of their liberty.

Northern Ireland Health Minister Mike Nesbitt had sought to change the code of practice on deprivation of liberty, arguing that a person can give valid consent through the expression of their wishes and feelings even if they lack relevant capacity. In written submissions on behalf of Northern Ireland's attorney general, Tony McGleenan KC said a wider definition for the code of practice would "mean that fewer people aged 16 and above with impaired decision-making capacity would be regarded as deprived of their liberty." He added: "Safeguards would still be required... but those safeguards would focus on identification of the person's known wishes and feelings."

The new ruling adopts a multifactorial approach to determining whether someone is deprived of their liberty, taking into account a person's own wishes and feelings. Unless a person indicates an objection, their living arrangements are unlikely to be considered a deprivation of liberty.

More than 9,000 people in Northern Ireland are expected to be affected by the ruling. The health minister now has the legal power to revise the Deprivation of Liberty Safeguards (DoLS) Code of Practice.

The judgment has drawn sharp criticism from disability charities. In a joint statement, Mencap, Mind and the National Autistic Society said the ruling "sets us back decades" and could make it "easier for abuse and neglect to go unnoticed behind closed doors." The charities warned: "By removing independent checks, advocacy, and automatic access to legal aid, the Court has closed the gateway to justice and support for many who need it most. A litany of previous wrongdoings demonstrate how closed cultures, lack of independent oversight and restrictive care can lead to abuse scandals and decisions like this fly in the face of everything we've learnt."

The charities called on the UK government to urgently issue interim guidance to health care providers and "urgently bring in new laws and guidance that strengthens protections for some of the people who are most at risk." They said this should include "clearly explaining how disabled people and their families can challenge breaches of their rights and get the advocacy and support they need."