Court to decide whether adults lacking capacity can consent to confinement arrangements
The Supreme Court of the United Kingdom is preparing to consider a major constitutional and human rights question concerning the care and treatment of people who lack mental capacity in Northern Ireland. The case, brought by the Attorney General for Northern Ireland, asks whether the Minister of Health has the legal authority to revise the Deprivation of Liberty Safeguards Code of Practice under the Mental Capacity Act (Northern Ireland) 2016.
At the centre of the dispute is whether individuals aged 16 and over who lack mental capacity can nonetheless provide valid consent to arrangements amounting to confinement through the expression of their wishes and feelings.
The existing Code of Practice requires formal legal authorisation where a person is deprived of their liberty for care and treatment purposes. The proposed revision would allow certain individuals who lack decision-making capacity to be treated as consenting to those arrangements if they appear content with them.
The issue raises significant questions under Article 5 of the European Convention on Human Rights (ECHR), which protects the right to liberty and security. Under the Northern Ireland Act 1998, ministers in Northern Ireland cannot act incompatibly with Convention rights. The legality of the proposed Code revision therefore, depends on whether the revised approach complies with Article 5 ECHR.
The Attorney General for Northern Ireland argues that people lacking capacity but expressing agreement with their care arrangements should fall outside the scope of Article 5 protections concerning deprivation of liberty. However, the proposed approach appears to conflict with the Supreme Court’s earlier landmark ruling in P v Cheshire West and Chester Council and another [2014] UKSC 19.
In Cheshire West, the Supreme Court held that individuals who lack mental capacity cannot legally consent to confinement arrangements, even if they appear content or compliant with the care being provided. That judgment significantly widened the circumstances in which formal deprivation of liberty authorisations are required.
The present reference asks the Supreme Court to clarify whether the proposed Northern Ireland Code would remain compatible with Convention rights despite that earlier authority. The case also involves several senior law officers and public bodies from across the United Kingdom. Respondents include the Advocate General for Northern Ireland, the Lord Advocate, the Counsel General for Wales and the Minister of Health.
A number of organisations have intervened in the proceedings, including the National Autistic Society, Mencap, Mind, the Mental Welfare Commission for Scotland and the Official Solicitor. The judgment is expected to have significant implications for mental capacity law, deprivation of liberty safeguards and healthcare practice throughout the United Kingdom.