What the decision means for our advocacy service
A recent UK Supreme Court judgement has changed the legal approach to deciding whether a person is deprived of their liberty.
The decision could have a significant impact on people receiving support through DoLS, Relevant Person’s Representative (RPR) services, Independent Mental Capacity Advocacy (IMCA) and other safeguards.
What has changed?
The Supreme Court has now overturned the Cheshire West approach.
Decision-makers must now look at the whole situation, including the person’s wishes, feelings, understanding of their situation, acceptance of arrangements, and the overall effect of restrictions.
The Court decided that some people may be able to show valid agreement to their arrangements even if they lack mental capacity to make the decision under the Mental Capacity Act.
This change could mean that fewer people are considered deprived of their liberty and therefore fewer people may receive DoLS authorisations, RPR appointments, IMCA involvement or court reviews.
What are our concerns?
We are worried that potentially this could lead to:
- less independent oversight;
- difficulty identifying genuine agreemnt;
- compliance being mistaken for consent;
- potential loss of advocacy support and safeguards for vulnerable people.
Our response
While we wait for clear guidance, our focus remains the same.
Staff will continue normal advocacy practice. This includes focusing on the person’s wishes, feelings and rights whilst also recording clearly what the person is communicating about their care and living arrangements and, where appropriate, challenging restrictive practices.
Our Head of Service and CEO are working with other advocacy organisations to develop new best practice guidelines whilst continuing to promote the value of advocacy and strong, independent safeguards to local authorities and others.
Although the legal framework may change, our mission does not. We will continue to promote the rights, wishes and independence of the people we support and ensure vulnerable individuals do not lose access to the protections and safeguards they need.
Katherine Shaw, CEO, The Advocacy Project