The Law Society Gazette reports that this week, the Supreme Court made the decision to move away from the Cheshire West framework, a major legal test that has been used for more than 10 years to decide when people who lack mental capacity are being deprived of their liberty.
It was reported that the court argued the Cheshire West ‘acid test’ was legally flawed and should be replaced with a wider assessment that looks at a person’s overall living arrangements, level of supervision or control, ability to make choices about their life, and the impact of the restrictions placed on them. The Mind asserts that the Supreme Court’s decision ‘…introduces a regressive legal standard that will fundamentally alter the lives of potentially hundreds of thousands of vulnerable people.’
Mencap, Mind and the National Autistic Society have called the ruling ‘the biggest rollback of disability rights in a generation.’ They argue that it could leave hundreds of thousands of disabled people without safeguards when they are living in restrictive care settings.
The charities focus on the practical implications of the decision. Under the Cheshire West test, people who lacked capacity, were under continuous supervision and control, and were not free to leave would usually qualify for Deprivation of Liberty Safeguards (DoLS). These safeguards provided independent reviews and access to advocacy services.
The charities argue that many people who would previously have qualified for DoLS protections may now fall outside the safeguards system. Referring to the former Cheshire West framework, Mencap explains that, ‘This means that if someone lacks the mental capacity to consent to their care and living arrangements, is under continuous supervision and control, and is not free to leave, they were legally ‘deprived of their liberty’.’ Following the Supreme Court’s decision to move away from this approach in favour of a broader assessment, charities have expressed concern that individuals who would previously have benefited from legal safeguards may no longer be afforded the same protections.
The Supreme Court took a different view, stating that the Cheshire West test did not align with established European human rights case law. The Court observed that ‘the process of assessing whether there has been a deprivation of liberty is no easy task in some contexts and may give rise to difficulties, especially in borderline or marginal cases.’ Rather than relying on a simple checklist, the judges held that courts should undertake a broader assessment of the individual’s overall circumstances, including their wishes, feelings, and whether they object to their care arrangements.
However, charities fear that the new approach could lead to less independent oversight. They argue that if fewer cases need formal authorisation, fewer people may have access to advocates, reviews and legal challenges. They say this could make it harder to identify care arrangements that are inappropriate or unnecessarily restrictive.
