Ruling removes ‘vital’ UK safeguards for severely disabled people, charities warn | Disability

People with severe disabilities are at increased risk of abuse in care homes and hospitals after the biggest change to disability law in a generation upended “vital” legal safeguards, campaigners have warned.

they said supreme court decision By potentially denying hundreds of thousands of vulnerable people the right to independent checks on the safety and suitability of their care, the practice “devalues ​​the dignity of disabled people”.

The landmark decision means many adults who lack mental capacity will lose access to these services, including autistic people with high support needs, people with severe learning disabilities, serious mental illnesses and people with advanced dementia. safeguards against deprivation of liberty (Progeny).

The high court ruling, published on Tuesday, overturned the existing legal framework for ensuring that people in care homes and hospitals who lack the capacity to consent to necessary treatment, medication or restraints receive safe care in their best interests.

The UK Department of Health and Social Care (DHSC) and the Northern Ireland executive had objected to the safeguarding framework, known as the Safeguarding Framework, which was introduced in 2014. Cheshire West decisionOn the grounds that it is legally wrong, is no longer needed, and creates an expensive, intrusive and unnecessary care bureaucracy.

Disability charities Mencap, Mind and the National Autistic Society said this week’s decision “eliminates safeguards that history has shown are vital for disabled people” while introducing a “regressive legal standard” across the NHS and social care.

They added: “By removing independent checks, advocacy and automatic access to legal aid, the court has closed the door to justice and support to those who need it most. Removing these safeguards makes it easier for abuse and neglect to go unnoticed behind closed doors.”

They said the decision went against lessons about the importance of independent oversight of care from institutional abuse and neglect scandals involving vulnerable adults, including Winterbourne View, and the death of 18-year-old Connor Sparrowhawk. Six care workers at Winterbourne View were sentenced to prison for “cruel, callous and degrading” abuse of disabled patients, while Sparrowhawk suffered appalling neglect in an assessment and treatment unit and drowned in a bathroom behind a locked door in the middle of an epilepsy attack.

Campaigners are concerned by adjudication rules that a person without capacity who appears passive or does not actively protest about their care, even if they are sedated or restrained, will be deemed to have consented to that care and will lose supervision and legal protections as a result.

Oliver Lewis, barrister at Doughty Street Chambers, said: “The decision ignores decades of evidence from disability studies that some people are more suggestible, more susceptible to persuasion, more vulnerable to hospitalization and the normalization of abuse and neglect because of their disability.”

Campaigners are disappointed that changes to Dols have been made without public and parliamentary debate or consultation with stakeholders and without a formal risk and impact assessment. “This is undemocratic and outrageous,” said Lewis, who represents charities in the case.

Describing the decision as “earthquake”, Rashpal Bishop, deputy chairman of the Association of Directors of Adult Social Services, said redefining deprivation of liberty would reduce the number of Dols applications over time, many of which are non-essential, and enable councils to reprioritise staff and financial resources.

He said the Dols system would, over time, “focus on a smaller group of people who are unhappy with their care arrangements and are actively objecting to their placement, or for whom the restrictions are excessive and there is a need to be provided with legal safeguards and the opportunity to challenge their detention”.

The Cheshire West decision has greatly increased the number of people subject to Dols. Around 400,000 people in England and Wales are estimated to own Dols in 2023-24, up from around 14,000 in 2013-14. Each Dols is revalued annually, a process that can cost more than £500 at a time.

Concerns about the administrative and cost burden of the post-2014 Dols system led to the 2019 legislation enabling a more streamlined system of so-called freedom protection guarantees. However, successive governments have failed to implement this. The current government announced last year that it would consult on the new approach.

Announcement is being made During the consultation process, which has not yet been opened, State Care Minister Stephen Kinnock said last year: “Protecting vulnerable people and their rights is an absolute priority for this government.”

In its submission to the court, the DHSC argued that Dols requirements had “reduced greatly” since the Cheshire West decision because “comprehensive safeguards for incapacitated people were no longer in place at that time”, including Care Act protections and quality of care checks.

Campaigners have called for urgent guidance from the government on new regulations, amid fears the decision will trigger “months of chaos” as local authorities seek to cancel existing permits and new practices, leaving disabled people and families in limbo.

A government spokesman said: “We respect the Supreme Court’s decision on the meaning of deprivation of liberty. Our priority has always been to protect vulnerable people and ensure their rights are protected. We will now carefully consider the decision and its implications and will issue guidance to the industry shortly.”