NSUN condemns, in the strongest possible terms, the Supreme Court’s dismantling of the legal safeguards that protect the liberty of hundreds of thousands of Disabled people. Without any kind of vote or consultation, the door has opened for Disabled people to be detained in dangerous conditions with severely reduced scrutiny and without independent oversight.
About the Supreme Court ruling
Last week the Supreme Court overturned the 2014 decision that has become known as the ‘Cheshire West’ ruling. Cheshire West set a standardised benchmark for when a person would be legally classified as being deprived of their liberty under Article 5 of the European Convention on Human Rights. The key part of the benchmark was its ‘acid test’, which was a simple formula for when a person would be considered deprived of their liberty: if they were kept under continuous supervision or control, and were not free to leave.
Last week’s Supreme Court decision changes this standard. It does so by introducing the idea that Disabled people previously defined as unable to give consent to their living conditions might now be able to give consent by expressing their ‘wishes and feelings’. This is an extremely subjective metric by which to measure consent. In practice, it could mean that, for example, if a local authority or health board assessor thinks someone seems happy with their care, they may not be considered deprived of their liberty, even if they are not free to leave their place of residence.
The reason this matters is because being legally classified as deprived of liberty comes with legal protections called Deprivation of Liberty Safeguards (DoLS). The DoLS place legal duties on those responsible for a person’s care to regularly review whether that person’s living arrangements are actually in their best interest. It is likely that the DoLS system as we know it will change significantly as a result of the Court’s decision. This is likely to mean that there will be less oversight and care for those who are deprived of their liberty, simply because many will no longer be legally classified as such.
Why we are concerned
This decision – being referred to as ‘the biggest rollback of Disability rights in a generation’ – will leave many Disabled people deprived of their liberty without the protections that previously came with being legally classified as such. This is happening in a deeply concerning legal and political context in which mad and Disabled people’s rights are being eroded at an alarming rate (e.g. through welfare “reforms”), and with countless “scandals” over the past few years exposing cultures of neglect and abuse behind closed doors in healthcare settings, including within the psychiatric system.
Because this decision occurred in the Supreme Court, it happened without public scrutiny, parliamentary debate, or vote. Because of the way the case was bought, there is no legal route to appeal the decision.
At NSUN we understand this as part of a deeply concerning trend of stripping people of their rights through the back door – no vote, no chance of appeal. Other examples of this include the weakening of safeguards for those in the immigration detention system and the rollback of trans people’s access to their rights through the EHRC Code of Practice. We cannot and will not accept these decisions being made without, at the very least, open debate, meaningful consultation and careful analysis of how people will be impacted or harmed.
We join Mind, Mencap and the National Autistic Society in calling on the Government to issue interim guidance to local authorities and health and care providers as soon as possible, and to legislate for the genuine protection of Disabled people’s rights. This must be done in close collaboration with Disabled people themselves, their organisations, and their families.
NSUN will continue to fight for the rights and dignity of mad and Disabled people, challenging unjust policy changes and building better alternatives beyond current systems.
Learn more about the Cheshire West decision:
- Disability News Service, Supreme Court ruling set to remove vital safeguards for hundreds of thousands of disabled people (article)
- Oliver Lewis, UK Supreme Court abolishes the ‘acid test’ (video explainer)
- ‘The biggest rollback of disability rights in a generation’ – Charities respond to Supreme Court ruling (article)