A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998

Hearing listed

Case summary
Appeal
Change log

Case summary

Case ID

UKSC/2025/0042

Parties

Appellant(s)

Attorney General for Northern Ireland

Respondent(s)

Advocate General for Northern Ireland

Lord Advocate

Counsel General for Wales

Minister of Health

Intervener(s)

Secretary of State for Health and Social Care

National Autistic Society, Mencap and Mind

Issue

Does the Minister of Health for Northern Ireland have the power to revise the Deprivation of Liberty Safeguards Code of Practice (“the Code”) so that persons aged 16 and over who lack capacity to make decisions about their care and treatment can give valid consent to their confinement through the expression of their wishes and feelings?

Facts

The Code is issued under the Mental Capacity Act (Northern Ireland) 2016. It details the process and criteria for authorising the deprivation of a person’s liberty in order to provide them with care and treatment when they lack the mental capacity to consent. At present, the Code requires that the confinement of persons aged 16 and over for the purposes of care and treatment is formally authorised. The Minister intends to revise the Code so that these persons can give valid consent to their confinement, even though they lack capacity, through the expression of their wishes and feelings. The Northern Ireland Act 1998 limits the Minister’s powers so that the proposed revision to the Code will only be lawful if it is compatible with the rights protected by the European Convention on Human Rights (“ECHR”). These include the right to physical liberty guaranteed by article 5. The Attorney General for Northern Ireland considers that the proposed revision to the Code is compatible with the ECHR because it would take persons who lack capacity but consent to their confinement through the expression of their wishes and feelings outside of the scope of article 5. However, the proposed revision would take a different approach to consent to that taken by the Supreme Court in P v Cheshire West and Chester Council and another [2014] UKSC 19. In Cheshire West, 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. In light of this, the Attorney General asks the Supreme Court to confirm that the proposed revision to the Code is compatible with article 5 ECHR and, therefore, within the Minister’s powers.