Severely disabled people can now consent to care arrangements, Supreme Court rules

Severely disabled people aged 16 and over will now be able to give consent to their care arrangements despite not having the capacity to do so, the Supreme Court has ruled.

The judgement, which was triggered by a case brought by the Attorney General for Northern Ireland, will apply across the UK.

Northern Ireland Health Minister Mike Nesbitt had sought to change the code of practice on how people are deprived of their liberty if they lack the capacity to consent to care arrangements.

Charities including Mencap, Mind and the National Autistic Society have warned that the ruling "strips fundamental human rights protections from potentially hundreds of thousands of severely disabled people".

It is thought more than 9,000 people in Northern Ireland will be affected by the ruling, and any potential action by the health minister.

It also means other health departments across the UK could change their legal frameworks on care arrangements for those who are severely disabled.

The ruling overrules a previous Supreme Court judgement ruling known as Cheshire West.

In that case, the court established an 'acid test' that if someone is under continuous supervision and control, is not free to leave and cannot consent to this, they are deprived of their liberty.

This usually applies to people with a severe learning disability or dementia, living in locked rehabilitation units or placements such as supported living or care homes.

However, Northern Ireland's health minister sought to change the code of practice so that a person can given valid consent, through the expression of their wishes and feelings, even if they lack relevant capacity.

These legal safeguards ensure an independent person checks that such arrangements are justified, lawful, and in the person's best interests.

However, the Supreme Court heard arguments that Cheshire West was wrongly decided and creates an unsustainable administrative burden on health and social care systems.

In written submissions on behalf of Northern Ireland's attorney general, Tony McGleenan KC said a wider definition for the code of practice would "mean that fewer people aged 16 and above with impaired decision-making capacity would be regarded as deprived of their liberty".

"Safeguards would still be required... but those safeguards would focus on identification of the person's known wishes and feelings," he added.

The ruling, which will also be applied in England, Wales, and Scotland, as well as Northern Ireland, has said that a multifactorial approach will now be used in determining whether someone is .