Supreme Court decision brings the end of Cheshire West with immediate effect

The Mental Welfare Commission for Scotland, who took part in the case as Interveners, welcomes this unanimous judgement by the UK Supreme Court: 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.

We intervened in this case because we were keen to share our knowledge and experience of the legislative framework operating in Scotland and ensure the court had a full understanding of the Scottish position.  We believe that capacity should be considered as a spectrum which may mean that someone is lacking in capacity to make a decision but may still retain the ability to understand matters and at least contribute to that decision making.  That is, where an incapable adult has sufficient understanding to express a feeling one way or another, that feeling should be taken into account. Indeed, under Scottish legislation that feeling must be taken into account. 

We were pleased to see the Commission’s position directly adopted in the UK Supreme Court’s judgement including at section 192 where it states:

“The argument that, because some adults will find it difficult to communicate and express views and feelings about their placement, the views of no adults should be capable of vouching consent creates an arbitrary threshold and may lead to unnecessary and intrusive interference with the private lives of those adults with impaired mental capacity who are able to express views and feelings”. 

As we explained, to disregard the views and wishes of the adult because he or she is incapable of making the ultimate decision is to (i) undermine the purpose of Adults with Incapacity (Scotland) Act 2000 to include the adult in decision making as much as possible, and (ii) place an arbitrary barrier in the way of the inclusion of that adult in a manner that professionals have determined to be in his or her best interests. It is to go further than the European Court of Human Rights has gone in terms of Article 5, and gives insufficient weight to the balancing of the Adult’s Article 8 rights.  

We therefore welcome the UK Supreme Court’s decision to overrule Cheshire West, value individuals who lack legal capacity under domestic law recognising that they may still, in some circumstances, be able to give valid consent for Article 5 purposes through their individual wishes and feelings. As we explained in our submission to the court, a blanket disregard for the adult’s feelings would rarely, if ever, be in the interests of the adult. 

This unanimous judgement by the UK Supreme Court will be invaluable in assisting Scotland to move forward to reform its legislation as recommended by the Scottish Mental Health Law Review in 2022.