UK Govt. Calls For Supreme Court To Overturn Cheshire West Ruling

UK Govt. Calls For Supreme Court To Overturn Cheshire West Ruling

Under the European Convention on Human Rights (ECHR), everyone has the right to liberty. This means that if someone’s freedom is restricted because they need care or treatment, it must be done lawfully and with proper safeguards in place.

In 2014, the UK Supreme Court made a landmark ruling known as ‘Cheshire West’. The ruling concerned two cases. The first involved a man with profound and multiple learning disabilities who lived in a council-provided bungalow under continuous supervision and care. He was considered to lack the capacity to make decisions about his care arrangements. The second case involved two teenage sisters, both with learning disabilities, who were placed by the local authority in separate care settings for their safety. Both were under ongoing supervision and control in those placements.

The key issue was whether these living arrangements amounted to a “deprivation of liberty” under Article 5 of the European Convention on Human Rights (ECHR). The Cheshire West ruling established that if a person is under constant supervision, is not free to leave, and can’t consent to their care arrangements, then they are being deprived of their liberty. This became known as the ‘acid test’. In these situations, there must be legal safeguards, independent oversight, and a right for the person (or someone representing them) to challenge the care arrangements.

Last month the UK Government asked the Supreme Court to overturn part of this ruling. It argues that Cheshire West has gone too far and has placed too much pressure on councils and the NHS in England. The Government says that the law should focus more on a person’s known wishes and feelings.

However, there is concern about what weakening the Cheshire West protections could mean. Several national charities have said that some people with learning disabilities, dementia and autism who are considered to lack capacity could lose vital protections that help prevent unnecessary restrictions, neglect, or even abuse.

In Scotland, there has been long-standing recognition that the Adults with Incapacity (AWI) Act requires reform to more clearly address situations where a person may be deprived of their liberty. Yet, despite the Scottish Law Commission’s recommendations following the Chesire West ruling, and the Scottish Mental Health Law Review’s recommendation for urgent reform, no changes to the law have been made.

As a result, SCLD has concerns that many adults with learning disabilities in Scotland who are deemed to lack capacity and are living in care homes or out-of-area placements may be deprived of their liberty without the necessary safeguards, potentially in breach the ECHR.

The Scottish Mental Health Law Review recommended legislative reform that:

• Places the person’s wishes and preferences at the centre
• Guarantees a meaningful right of review
• Allows attorneys or representatives to authorise restrictions, but only with safeguards
• Requires a court or tribunal to approve and review any deprivation of liberty

The Scottish Government has consulted on changes to the AWI Act and made a commitment to bringing forward a reform Bill in 2025. However, this was later dropped from the Programme for Government.

This lack of progress is hugely concerning. SCLD would urge the Scottish Government to speed up the pace of reform. But in the meantime, it is crucial that the safeguards established under Cheshire West are not weakened if we are serious about protecting and upholding the rights of those who may be least able to advocate for themselves.

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Lorne Berkley, SCLD