12 years after the Supreme Court made a landmark decision impacting social care nationally, the judiciary has u-turned.
Heard in 2014, the original case was brought about by three people living with learning disabilities, who argued that living under council-imposed restrictions — supposedly introduced in the individuals’ best interests — constituted a legal deprivation of liberty. The decision led to an absolute definition of what would constitute the term.
As a result, a so-called ‘acid test’ was developed, meaning a person could only be considered deprived of their liberty in situations when supervision and control is continual and there is no ability to leave the place they are in career. ‘A gilded cage is still a cage. Human rights are for everyone, not just for those who are fit and well, and able to look after themselves,’ said Lady Hale, President of the Supreme Court, at the time.
The impact of the original ruling was felt across the social care sector, nationwide. However, this month the Supreme Court appeared to u-turn on the original decision, and described the single format assessment as unfit for purpose. Instead, multiple factors should be considered when trying to determine if circumstances met the legal definition of deprivation of liberty.
These include the individual’s own wishes — meaning it is no longer possible to argue mental capacity is too low to give ‘valid consent’ — and the specifics of their situation. The nature of restrictions should also be taken into account.
According to the new ruling: ‘the imposition of the ‘acid test’ is wrong in law because it goes beyond the jurisprudence of the European Convention. A person’s lack of objection is not legally irrelevant to the question of objective confinement.’
‘This decision injects a much-needed dose of common sense back into social care,’ it continued. ‘By overturning a rigid formula, we can finally stop wasting thousands of hours on bureaucratic assessments for residents who are content, allowing resources to flow back to frontline care where they are desperately needed.’
Mencap, Mind, and the National Autistic Society have since issued a joint letter criticising the judgment, which the organisations have described as ‘the biggest roll-back of disability rights in a generation’. ‘This regressive legal standard devalues the dignity of disabled people and strips away vital independent checks on the safety and appropriateness of their care,’ the letter added.
Concerns include increased inconsistency within the social care system, higher probability of litigation due to the lack of black-and-white distinction. In contrast, the extensive nationwide backlog of council Deprivation of Liberty Safeguards is expected to be dramatically reduced.
Image: Stefano Intintoli / Unsplash
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