This week, the Supreme Court (UKSC/2025/0042) is considering a submission by the Attorney General for Northern Ireland, addressing the following issue:
Does the Minister of Health for Northern Ireland have the power to revise the Deprivation of Liberty Safeguards Code of Practice (“the Code”) so that persons aged 16 and over who lack capacity to make decisions about their care and treatment can give valid consent to their confinement through the expression of their wishes and feelings?
This is an extremely important challenge, as it raises questions around the role of Deprivation of Liberty Safeguards (DoLS), and what we understand by the term ‘deprivation of liberty’. It therefore challenges the foundations of key Mental Capacity caselaw such as Cheshire West, which famously tells us that ‘a gilded cage is still a cage’.
Were these proposed changes to be approved by the Supreme Court then it opens up the possibility to some vulnerable people having their liberties restricted (‘deprived’) without the need for due process, protections (including advocacy) and authorisation, should they not be raising any form of objection – as the lack of objection may be assumed to be a form of ‘consent’ despite a lack of capacity to consent to their care and treatment. This could potentially have a significant series of ‘knock on affects’ if agreed, raising questions and concerns.
All eyes are on the upcoming news for which we will share an update upon its publication.
For related posts on this topic please see:
- Local Government Lawyer
- Lucy Series, In the small places
- Open Justice: Court of Protection Project (includes a very useful summary of the skeleton arguments)
- Community Care
- MIND
- UK Human Rights Blog