A change to protections
For more information on this topic, visit the Advonet website, where they have produced an Easy Read explanation of the Supreme Court Ruling.
On 2nd June, there was a Supreme Court Ruling that didn’t really make the headline news. It decided that the acid test’ (a safeguarding check to make sure disabled people are in appropriate care) added to the Cheshire West Ruling 2014 was to be removed. This test provided essential safeguards to ensure that disabled adults considered to lack capacity under the Mental Capacity Act were being looked after according to their needs, and had their human rights respected. Without it there is no automatic independent outside intervention, involvement and safeguarding checks, and hence no assurance that they are being cared for safely and with dignity. This includes when they are subject to continuous supervision and not free to leave where they are staying, also known as ‘confinement.’
The Supreme Court Ruling decided that individuals under the Mental Capacity Act can provide what they call ‘valid’ consent regarding their care. The care providers are the ones who interpret this ‘valid’ consent. In any other industry, this would be a blatant conflict of interest, as the care providers have an interest in inferring affirmative consent (even where it may not exist) so that they benefit from the income from providing care. Care providers are also very busy staff who are often rushed off their feet, and increasingly use agency staff to plug staffing gaps. Agency staff and new care staff are unlikely to be able to accurately interpret someone’s consent, it may take someone who has known the individual for a long time.
Rollback on Human Rights
The Supreme Court Ruling also decided that those covered by the Mental Capacity Act do not have the cognitive capacity to experience human freedoms and liberties. Which means that they can now potentially be held in confinement without due course, process or oversight.
I used to work as an adult support worker, and I can guarantee you that the people that I worked with can experience human freedoms, rights and liberties. I have watched them smile as we dance, watched them laugh as I do funny impressions, and seen them experience flashbacks and trauma from their time in institutions, which still affects them decades later. The judges in this court ruling should be ashamed of themselves, and it is blatantly clear they have never spent time with someone who should be protected by the Mental Capacity Act.
Lady Hale said the following in her original judgement in what became known as the Cheshire West Ruling 2014:
‘But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.’
What we’re all doing
Charities that have published statements about this ruling include The National Autistic Society, Mind, and Mencap: https://www.autism.org.uk/what-we-do/news/charities-response-to-supreme-court-ruling
At York Disability Rights Forum, we add our voice to theirs. That this new ruling is a terrifying rollback of rights that could affect hundreds of thousands of disabled people throughout the UK. We are horrified at the implications, the complete lack of third-party independent oversight, the lack of effort to involve disabled people in the decision, and the lack of a framework for implementation throughout the UK. There are so many reasons why this ruling is unjust and outright removes the human rights for many people.
The Supreme Court Ruling was effective immediately, with no route for appeal. We see this as not just a rollback on human rights, but without any involvement from those affected, or disability organisations, it is also a democratic failing and is grossly unfair to disabled people across the UK.
Locally in York, we are calling upon the City of York Council and involved organisations at every opportunity to understand the effects of this ruling, and to implement a way of working that introduces and/or maintains the following:
- That consent to a person’s care provision following this ruling is interpreted by a trusted third party and does not have a blatant conflict of interest
- Safeguards in place and regular monitoring to ensure individual’s human rights are being upheld
- Thorough due diligence on care providers and requirements of care
- Working with affected people to understand what they want and need as a result of the ruling
- Once the new process is established, the development and distribution of an Easy Read document to explain the changes to those affected and tells them what to expect and finds other routes to explain them to those unable to access Easy Read.
A straightforward summary
At York Disability Rights Forum, we understand the need for information to be accessible. This new legal ruling is very complicated, but we have tried to capture some key points below:
- The Supreme Court decided something that affects those under the Mental Capacity Act
- It is in place from the 2nd June 2026 and the decision can’t be appealed
- It removes the safeguard checks done to make sure someone’s care is suitable for them (also known as an ‘acid test’ that were introduced in 2014)
- It says that people coming under the Mental Capacity Act can consent to their care, but that this can be judged by the care provider (who may have a conflict of interest)
- It makes it legal to take away some the human rights people under the Mental Capacity Act because it states that they cannot experience freedom and liberty (they are wrong, and we know they are wrong)