Northern Ireland Government to ask Supreme Court whether amended Deprivation of Liberty Safeguards Code of Practice satisfies Article 5 even if approach is different to Cheshire West
The Attorney-General for Northern Ireland has made a reference to the Supreme Court over whether proposed changes to Northern Ireland's Deprivation of Liberty Safeguards Code of Practice that differ from the approach set out in the landmark Cheshire West ruling nevertheless satisfy Article 6 of the European Convention on Human Rights (the right to liberty).
The specific issue referred to the Supreme Court is: “Whether the Minister of Health has power to revise the Deprivation of Liberty Safeguards Code of Practice issued under s.288 of the Mental Capacity Act (Northern Ireland) 2016 (‘the 2016 Act’) so as to provide that, in the context of the delivery of care and treatment, individuals aged 16 and over with impaired decision-making may be understood to be consenting to confinement through the expression of wishes and feelings, so that their circumstances do not fall within the scope of Article 5 of the European Convention on Human Rights (‘ECHR)’)”
Under the Northern Ireland Act 1998, a “devolution issue” (including whether an act of the government of Northern Ireland would be invalid as breaching the rights protected by the ECHR) may be referred to the Supreme Court for determination.
The question posed by the Attorney-General for Northern Ireland in the reference arises in the context of the provision of care and treatment for persons with cognitive impairments, and how their rights to liberty and security – under Article 5 of the ECHR – are safeguarded, the Supreme Court said.
It added: “The Attorney-General considers that the proposed revisions to the Deprivation of Liberty Safeguards Code of Practice (the “Code”) would adopt an approach to the scope of Article 5 which would differ from that outlined by the Supreme Court in the case of P v Cheshire West and Chester Council & Anor [2014] UKSC 191; [2014] AC 896, but which would nonetheless satisfy the requirements of Article 5.
“Accordingly, the Attorney-General seeks confirmation that the Minister of Health would have the power to issue the revised Code.”
The respondents to the reference are the Advocate General for Northern Ireland, the Lord Advocate, the Counsel General for Wales, and the Minister of Health.
Commenting on the reference on LinkedIn, Weightmans partner Ben Troke said: “We have speculated for a while that one way to rein in the scope of the definition of DoL after Cheshire West might be to take a closer look at the subjective element of the 3-part definition (per Storck) - ie that there is no valid consent to the restrictions.
“Until now, the law has treated incapacity as decisively showing that there is no consent.
“We might now see if the Supreme Court (after Lady Hale's retirement, of course) wants to take a chance to limit the scope of Article 5 ECHR in our law, if they find that there can be valid "consent" to the restrictions when this can be constructed from incapacitous wishes or behaviour, to mean that there is no DoL (and therefore no safeguards triggered), even if that makes the restrictions no less.”
