Joanne Clement KC and Zoe Gannon will be appearing in the Supreme Court 20, 21 and 22 October in The Reference by the Attorney General for Norther Ireland (UKSC/2025/0042). In the Reference the Minister asks the Supreme Court to confirm that a proposed revision to the Deprivation of Liberty Safeguards Code of Practice (“the Code”) is compatible with article 5 of the European Convention on Human Rights and, therefore, within the Minister’s powers.
The proposed revision concerns the extent to which a person who lacks legal capacity can “validly consent” to an objective confinement, through the expression of their wishes and feelings. And it would take a different approach to consent to that taken by the Supreme Court in the landmark judgment in P v Cheshire West and Chester Council and another [2014] UKSC 19.
In Cheshire West, the majority held that the “acid test” for the objective element of a deprivation of liberty was that a person was under continuous supervision and control and not free to leave their place of confinement. In relation to consent (the subjective element) the Supreme Court held that article 5 applies to persons who cannot consent to their confinement because they lack mental capacity. This is the case even where the person who lacks capacity indicates that they are content with the arrangements for their care and treatment.
Joanne Clement KC and Zoe Gannon act for the Secretary of State for Health and Social Care. The Secretary of State is intervening in the Reference to argue that the ‘acid test’ set down in Cheshire West for the objective element of a deprivation of liberty was not consistent with ECtHR rulings before or since 2014, and should be departed from.
Also intervening are three Charities, National Autistic Society, Mencap and Mind, who argue that Cheshire West was correctly decided, as well as The Mental Welfare Commission for Scotland and The Official Solicitor.
