The Podcast Returns!
The podcast is finally back this week after a long hiatus.
The case that was discussed may prove to be one of the most consequential decisions of the year as it will affect the level of care provided for thousands of people who struggle with physical and/or mental disabilities. On top of that, it is also set to negatively impact the human rights of those people as well.
Things all started when the Northern Ireland Minister of Health decided to revise the Code of Practice that governs the treatment of those who lack mental capacity. They wanted to change the guidance so that someone who lacked mental capacity could still consent to their care and living arrangements. This would have been in contravention of the Supreme Court's own determination in the case of Cheshire West from 2015.
However, last week the Supreme Court overruled Cheshire West and held that that decision went beyond the jurisprudence established by the European Court of Human Rights in Strasbourg.
If you would like to hear more about the rationalisation behind this latest judgment then do tune into the podcast, but it is suffice to say here that a lack of mental capacity no longer equates with an inability to consent to living and care arrangements and the minister is free to proceed with their proposed Code of Practice.
On the surface this sounds like a very good thing. We, as a society, want disabled people to have as much autonomy and agency as possible so giving them the power to consent (or not) to a central part of their lived experience sounds like a positive step.
However, this means that Article 5 of the European Convention on Human Rights (the right to liberty) will be harder to trigger where living conditions are unacceptable or potentially even dangerous.
The judgment will apply across the UK and so there will now be less pressure than ever on various health authorities to provide care and accommodation that meets minimum human rights standards, and less scrutiny when it comes to correcting breaches of the law.
If the UK were running an effective care system, this would only be a minor or even academic problem. Sadly, the care system is already on its knees as unprecedented demand is met with chronic underfunding and a staffing crisis.
This latest decision by the Supreme Court will likely hide these problems behind a veil of ignorance.
Episode link: https://uklawweekly.com/2026-uksc-16/
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Marcus