Supreme Court Judgment, a major setback for the rights of many vulnerable people

At Peter Edwards Law we are acutely aware of the feelings of profound shock and sadness at the Supreme Court decision. It is a major setback for the rights of many vulnerable people and essentially hands to the state the ability to decide whether or not a person has any rights to question what is happening to them. As Kate Mercer from Black Belt Advocacy has put it:

Many of the people most affected by this judgment are already at risk of becoming invisible. They live behind closed doors in hospitals, care homes and supported living services, often with little independent scrutiny of their lives.

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Stripping away safeguards

It has the potential to strip away safeguards including the roles of the Best Interests Assessor, the Relevant Persons Representative and the Independent Mental Capacity Advocate for many vulnerable people.

In this note we will suggest some further reading that may help, but essentially as the weeks and months progress, there will be much more written. What we cannot do at this stage is provide you with answers or predictions as to what lies ahead.

All we would ask is that, for all of us who have spent many years trying to support the vulnerable and develop their rights, that we now raise our voices and contribute to the debate in developing best practice going forward.

Our frustrations are well summed up by Oliver Lewis, one of the barristers involved in the case.

“Unfortunately, months of chaos are now coming. Local authorities are likely to cancel standard authorizations, depriving people of their liberty in different ways with no fall back, leaving many disabled people and families in limbo. In summary, the bright line of Cheshire West has been replaced with nebulous mud.”

Key points from the Judgment

Overturn of the “Acid Test”:

The Court determined that the previous standard, which labelled many lacking mental capacity in care settings as being deprived of their liberty, was legally incorrect and vastly oversimplified.

This was described by the Guardian Newspaper as follows

“Campaigners said a supreme court judgment that potentially strips the right of hundreds of thousands of vulnerable people to independent checks on the safety and appropriateness of their care “devalues the dignity of disabled people”.

The full Guardian Article can be read here

The landmark ruling means many adults who lack mental capacity, including autistic people with high support needs, severe learning disabilities, serious mental illness and advanced dementia, will lose access to deprivation of liberty safeguards (Dols).

The New Multifactorial Test:

Whether someone is deprived of their liberty now depends on a view of context. Courts and providers must now evaluate the type, duration, effects, and manner of implementation of restrictions in a person’s specific, concrete situation.

This is almost entirely subjective and will be understood or misunderstood in many different ways,

As Dr Lucy Series articulates:

“We are back to an under-specified analysis of ‘the whole range of factors in the particular case, including the type, duration, effect and manner of implementation of the measures in question.’ We were in this situation in 2013, when I finished my PhD – and you can see what chaos this approach caused in this graph of variable rates of interpretation by different practitioners around the country. As I wrote then, ‘if the per-capita application rate for Leicestershire were scaled up to reflect the whole of England, there would be over 37,000 applications per year. If the same were done for Reading, there would be only 341. These discrepancies cannot be explained by population size.”

The full article can be read here

Valid Consent Despite Lack of Capacity:

It may sound odd, but the Court decided that a lack of capacity does not automatically equate to a lack of ‘valid consent’. They asserted that if a person with limited capacity expresses that they are ‘happy’ or ‘content’ with their care arrangements, their compliance may act as valid consent, meaning they would not be deprived of their liberty.

However, Kate Mercer in her blog writes:

“The person is not objecting” and “The person is positively expressing that this is where they wish to be.”
The first is an absence of resistance. The second is evidence of preference.

“The court judgment appears to be looking for the second, not merely the first, however the danger is that professionals will confuse acceptance, resignation, acquiescence, dependence or fear-based compliance with genuine agreement. The danger is that services will treat silence, passivity or compliance as evidence of consent.”

You can read Kate Mercer’s full article here

Purpose and Setting do matter:

The so called ‘normality’ of a living arrangement (e.g., supported living vs. a secure hospital) and the care-focused purpose of the restrictions are, we are told, now relevant factors in the legal analysis. However, what this will mean in practice will require considerable guidance.

A detailed analysis can be found here

Impact on DoLS:

Significantly fewer individuals will automatically meet the threshold for a DoL. This means many care plans that previously required formal authorisation under the DoLs will no longer require it.

What Happens Next?

We are currently awaiting updated interim guidance from the DHSC.

Judges will have to address these changes on a case-by-case basis and some may issue judgments.

ADASS Have issued an important statement

“We recommend a cautious approach to implementation, that we wait for guidance from DHSC and a time of reflection to evaluate the full implications of the judgment before producing operational guidance. Urgent situations will always require an immediate response but there will need to be a period of time digesting such a complex judgement and such a seismic change and ensuring any processes are legally compliant and sustainable for the future operating model of DoLS.”  

Read the full response here

But what about the following?

The implication for the Mental Health Act and informal patients?
When to use the MCA / MHA for those detained in hospital for treatment of mental disorder?
Where does the agreement / objection by family’s impact on a DoL?
The Court indicated that the Care Act would provide a level of protection. How?
Should this enhance the role of the Care Act advocate?
The role of the Health and Welfare Attorney / Deputy could have a significant impact where they do not agree with the care plan even though P is acquiescing.
Using Advanced Decisions to Refuse Treatment and Advance statements to ensure that a person’s views / wishes and feelings can be used to enhance rights.

Still have a question?

Clearly there remain a large number of unanswered questions. If you come across any conundrums, we would be happy to hear from you.