UK Supreme Court muddies the waters on deprivation of liberty, as safeguards are stripped away

~ punkacademic ~

The Supreme Court last week ruled on a case brought by the Attorney General for Northern Ireland on the status of those deemed to be without mental capacity to consent to the deprivation of their liberty.

Put bluntly, the Court was being asked to decide whether someone with a condition such as Alzheimer’s, who has been deemed to lack mental capacity, can nonetheless be taken to have consented to being confined – whether in their own home or an institutional care setting. The Deprivation of Liberty is a statutory term for this, and the regime which governs this is known as DoLS – Deprivation of Liberty Safeguards.

I need to declare an interest here. My own mum is under a Deprivation of Liberty order. She has severe Alzheimer’s, and is violent. She is a danger to herself and others. Her safety, and the safety of others, are both vital concerns and require careful and complex support given her condition. What is largely an academic discussion for the Supreme Court has immediate and vital consequences for people and families grappling with the difficulties of a deprivation of liberty.

The Court’s ruling denied that there was an “acid” test for deprivation of liberty, whereby an individual is subject to “continuous supervision and control” and “not free to leave”’. It thereby reversed its 2014 decision known as Cheshire West. Instead, it now argues for a ‘multifactorial approach’ to assess whether individuals had been deprived of their liberty, and further argues that those without mental capacity could be deemed to have tacitly consented to their deprivation.

The ruling has been widely condemned by Disabled People’s Organisations (DPOs), three of which – the National Autistic Society, Mencap and MInd – intervened in the case. “By removing independent checks, advocacy, and automatic access to legal aid”, said the organisations, “the court has closed the gateway to justice and support for many who need it most”. It was telling that Wes Streeting, then Secretary of State for Health, had intervened in the case to argue that Cheshire West should be overturned.

It’s almost trite to say there need to be safeguards, at the very minimum. But motives matter. This case was never about enhancing the rights of disabled people; nor was it about meaningful consent. The reality is that the safeguards regime – where local authorities had to regularly check on the appropriateness and conduct of the restrictions – was, in the government’s view, placing too much of a burden on those local authorities.

This mirrors the general approach the government has to what it sees as ‘burdens’, which a term it favours when discussing we disabled folk. The government’s solution to a mental health crisis amongst the young? Slash access to EHCPs that give pupils statutory rights. Youth unemployment? Axe under-22s’ access key benefits. A crisis of chronic illness and disability in the wake of a global pandemic? Slash Personal Independence Payment.

And let’s be clear – cuts kill. But in the continuing ‘war on disabled people’, to borrow Ellen Clifford’s phrase, this decision is particularly emblematic. Those deemed not to have mental capacity are amongst the most vulnerable in our society. They often cannot advocate for themselves, and they are at the mercy of good or bad fortune, whether they have family who either care or have resources or both, or the state’s agencies and what capacity they have.

In an era when statutory services are in total meltdown, removing safeguards that protect the most vulnerable is a tell on the government’s agenda. Private providers are a disaster area, with sovereign wealth funds engaged in extractivism, and many local authorities functionally insolvent. Councils don’t know what ‘multifactorial tests’ are; nor do the rest of us. But again, motives matter. And local authorities in financial trouble have deeply questionable motives when it comes to caring for those with complex needs, and already breach statutory provisions on a regular basis.

Reducing the scrutiny on them is disastrous. While the law is never your friend, there are more and less amenable legal provisions depending on your situation and this settlement is far worse for disabled folks. The claim to include their wishes is pure gaslighting – on the one hand, affected disabled people are considered to have no capacity to make decisions for themselves; on the other, they are considered to be able to consent to their own confinement, which in certain circumstances may well suit the council down to the ground.

The State’s ability to confine you is one of the definitional aspects of its power. As anarchists, we reject the entire package. In the case of folks whose liberty is deprived ostensibly due to medical needs, we need to ensure that folks aren’t confined when they shouldn’t be.

We are living through a genuine crisis when it comes to disability in the UK; the State has a clear framing – we are burdens, a surplus population dismissed, and denied our rights, freedoms, and dignity. The reversal of the Cheshire West decision attacks the most vulnerable, but is part of the same corrosive assault on all our liberties.

Image: Adham Ragab, Unsplash