Supreme Court overrules Cheshire West, dismantling key legal protection

National disability and mental health charities have described a Supreme Court ruling that overturns the legal framework established by the landmark Cheshire West judgment as “the biggest rollback of disability rights in a generation”, warning that the decision removes vital safeguards for some of the most vulnerable people in society.

Mencap, Mind and the National Autistic Society said the judgment effectively dismantles the legal test introduced by the Supreme Court in 2014, which determined whether a person lacking mental capacity was being deprived of their liberty and therefore entitled to legal protections under the Deprivation of Liberty Safeguards (DoLS) system.

Under the Cheshire West framework, people who lacked capacity to consent to their care arrangements, were under continuous supervision and control, and were not free to leave were considered deprived of their liberty. This triggered a series of legal safeguards, including independent assessments and regular reviews of care arrangements.

The charities argue that the latest ruling removes those protections and could affect hundreds of thousands of people across health and social care settings.

In a joint statement, the organisations said: “This judgement sets us back decades and removes safeguards that history shows us are vital for disabled people. 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. Stripping away these safeguards makes it easier for abuse and neglect to go unnoticed behind closed doors. 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 said the judgment introduces a new legal standard that significantly narrows the circumstances in which a deprivation of liberty will be recognised. They claim the ruling suggests that people with profound cognitive disabilities may not be considered deprived of their liberty because of limitations in their ability to experience confinement, and that care arrangements would need to resemble the conditions of a prison cell in some borderline cases before legal protections are triggered.

They also expressed concern that passive acceptance of restrictive arrangements could be treated as consent, even where individuals are subject to physical restraint, chemical sedation or lifelong restrictions.

The organisations warned that autistic people with high support needs, people with severe learning disabilities, individuals with serious mental illness, and people living with advanced dementia could lose access to independent reviews, advocacy and legal safeguards under the new approach.

According to the charities, the effects could be felt across psychiatric hospitals, supported living services, residential care settings and in some highly restrictive home-based care arrangements.

Calling for an urgent government response, the charities said: “We are calling on the UK government to act with urgency to issue interim guidance to local authorities and health and care providers to prevent them being plunged into chaos by this ruling. It should urgently bring in new laws and guidance that strengthens protections for some of the people who are most at risk. 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.”

They added: “To the many people that will be affected by this ruling now and in the future, we stand with you and you are not alone. This decision devalues the rights and dignity of disabled people in this country.”

The ruling received a more positive response from the Association of Directors of Adult Social Services (ADASS), which said it was hopeful about the implications of the decision while recognising the need for continued safeguards.

Writing on LinkedIn, ADASS said: “We are optimistic about the ruling but aware there still needs to be appropriate safeguarding available - and we look forward to supporting the Department for Health and Social Care as they do the important work of developing new guidance for adult social care staff to take this forward.”

The Department of Health and Social Care is now expected to consider the implications of the judgment and develop guidance for providers and local authorities on its implementation.