Exploring the ruling in A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998
In brief
- The Attorney General of Northern Ireland referred the question of whether a person lacking capacity under domestic law could express "valid consent" to confinement so as to mean they have not been deprived of their liberty.
- The Supreme Court, overruling its prior decision in Cheshire West, held that "valid consent" was an autonomous concept that could not be equated to a bright-line capacity question. A wider inquiry as to the thoughts and feelings of the individual was required.
- The Supreme Court also reaffirmed the 'multifactorial' approach to Article 5, holding that determination of a deprivation of liberty required consideration of various factors including the purpose and nature of the confinement, and the individual's views.
- While the full implications of the judgment are yet to be reflected in updated policy guidance, it is already clear there will be a significant reduction in the number of individuals considered to be deprived of their liberty.
Background: The attorney general's reference and the decision in Cheshire West
Background to the Reference
This case was a Reference from the Attorney General of Northern Ireland (the 'Reference') concerning the validity of proposed amendments to the Deprivation of Liberty Safeguards Code of Practice in Northern Ireland.
The effect of the proposed amendment would mean that those who could not consent as a matter of domestic law (because they lacked capacity), could nevertheless be taken to have consented to the deprivation of their liberty for the purposes of Article 5 of the European Convention on Human Rights ("ECHR"), which protects the right to liberty and security of person.
The Attorney General's Reference arose because the proposed amendments directly conflicted with the Supreme Court's prior ruling in Cheshire West and Chester Council; Surrey County Council v P [2014] UKSC 19 ('Cheshire West').
The Decision in Cheshire West
Before turning to the decision in Cheshire West, it is necessary to understand the legal framework that constitutes Article 5. There are three components of a deprivation of liberty under Article 5 of the ECHR:
- Objective component: Confinement in a particular place for a material period of time;
- Subjective component: Without "valid consent"; and
- State component: In circumstances where the state, directly or indirectly, is responsible.
In their analysis of the above requirements, Cheshire West advanced what has been labelled an 'acid test' for whether a deprivation of liberty is made out, asking whether the individual is subject to "continuous supervision and control" so they are "not free to leave".
In the event that the 'acid test' is made out, and there is no "valid consent", a deprivation of liberty has occurred. Importantly, the Supreme Court in Cheshire West held that "valid consent" can only be given by those with the mental capacity under domestic law to do so.
In the Reference, the Supreme Court had to grapple with both elements of the Cheshire West judgment: the 'acid test' and the Court's conclusion on capacity.
In summary: The Supreme Court's decision
Overruling Cheshire West, the Supreme Court held that:
- The 'acid test' was not supported by authority, and instead what is required is a multifactorial approach to Article 5; and
- 'Valid consent' is an autonomous concept capable of being given by those lacking capacity under domestic law.
The multifactorial approach
While the Reference concerned the Court in Cheshire West's decision on the question of consent, the Supreme Court agreed with the submissions of the Secretary of State for Health and Social Care that the subjective and objective elements could not be considered separately.
It was here that the Supreme Court rejected the 'acid test' and reasserted the primacy of a multifactorial approach to Article 5. Only by taking into account a range of factors could decision-makers determine if a person was subject to confinement.
The Court articulated a number of these factors, most important of which were:
- The "relative normality" of the individual's life and the extent to which the confinement interrupted their day-to-day life;
- The purpose of the confinement;
- The nature of the setting and how closely it resembles what they referred to as the "paradigm" instance of deprivation of liberty, a prison cell; and
- The subjective perceptions of the individual and whether they feel confined or restricted.
As is clear from this list, the Supreme Court envisages an inquiry that is not confined to a largely factual question of whether an individual has their movements restricted, but rather a multifaceted inquiry into the nature, purpose and effect of confinement.
"Valid consent"
The most significant finding of the Court was that the Court in Cheshire West was wrong to reduce the question of "valid consent" to one of capacity. The Supreme Court held that, while an individual may "lack capacity in a full legal sense, they may nevertheless have a fundamental understanding of whether they are broadly happy or unhappy about something".
It is this ability to indicate happiness or unhappiness with a situation that underpins the Court's analysis. A lack of capacity under domestic law cannot tell us whether an individual is happy or unhappy with their present position, and to suggest that capacity would always defeat an individual's ability to express this was wrong.
The argument that, because some adults will find it difficult to communicate and express views and feelings about their placement, the views of no adults should be capable of vouching consent creates an arbitrary threshold and may lead to unnecessary and intrusive interference with the private lives of those adults with impaired mental capacity who are able to express views and feelings.
The practical consequence is that a lack of capacity will no longer be sufficient to satisfy the subjective element.
The Supreme Court noted that further guidance is necessary to flesh out when an individual may be taken to have expressed valid consent, but did provide a number of important observations:
- The Supreme Court acknowledged that there may be "considerable evidential difficulties" in determining consent, but that these would need to be judged on a case-by-case basis;
- While a "tacit positive indication of wishes and feelings" may be sufficient to indicate valid consent, "mere compliance or acquiescence may carry little weight"; and
- Where there is "serious doubt" as to a person's attitude, then "no inference of valid consent should be drawn."
The Court's judgment is a welcome return to "valid consent" as an autonomous concept doing real work in the Article 5 inquiry, as opposed to a tick-box, reductive question as to a person's capacity.
Taking stock: where are we now?
The practical takeaway from the decision is that Cheshire West is no longer good law, and the decision must now be reflected without delay in guidance, decision-making and applications. We can, however, cast an eye forward to see what may be in store for those who need to consider the issue of whether someone has been deprived of their liberty.
Reassessing the current approach
The first stage for local authorities, care providers and practitioners is to reassess their current approach to deprivation of liberty. Local authorities and care providers will be required to review their current cases (both those with active cases and those subject to a backlog) to determine whether they still fall within the remit of a deprivation of liberty.
The key practical result of the decision is that far fewer individuals will be considered to be deprived of their liberty. This is a welcome change. The Court in Cheshire West aimed to provide a wider group of individuals with safeguards to their liberty, but that goal had significant unintended consequences. DoLs authorisation requests rose from 13,700 in the year prior to Cheshire West to 322,455 referrals in 2023/24, leaving a backlog of over 123,000 cases and creating a lottery even for the most serious instances of confinement. Further, and as was noted by the Court, the personal toll on individuals going through the DoLs process and waiting for approval should not be a forgotten impact of the wider ranging approach in Cheshire West.
While the Court in Cheshire West may have had a laudable goal, it is to be hoped that the Supreme Court's decision restores some much-needed order and priority.
Rebuilding the decision-making process
The second stage will be developing an understanding of how the multifactorial approach works in practice. The approach represents a significant departure from Cheshire West and will require substantial elucidation. In the short term, we can expect fewer DoLs applications, but likely more litigation as decision-makers and courts alike come to terms with the new test.
A shift to alternative safeguards?
One unfortunate outcome of the Cheshire West judgment was an overextension of the concept of deprivation of liberty to ensure safeguards for those who lack capacity and are subject to some element of confinement. However, a person need not be found to have their liberty deprived in order to be protected. As the Supreme Court noted, the Mental Capacity Act itself contains further safeguards that operate independently of the DoLs regime. In some cases, decision-makers are required to create support plans that are subject to annual review, and in any event, they remain under a duty to investigate safeguarding issues arising from residential placements. There are, of course, various other tools at the disposal of decision-makers, and the focus is likely to shift toward how these regimes ought to be used in light of the Supreme Court's decision.