Charities have described a Supreme Court judgment on what counts as deprivation of liberty under article 5(1) of the European Convention on Human Rights as the ‘biggest rollback of disability rights in a generation’.

Disability charity Mencap, mental health charity Mind and the National Autistic Society intervened in the case of 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. They said the judgment ‘sets us back decades and removes safeguards that history shows us are vital for disabled people’.

The 82-page judgment found that the majority finding in the 2014 Supreme Court judgment of Surrey County Council v P; Cheshire West and Chester Council v P [2014] ‘erred in their interpretation of the Strasbourg jurisprudence’ in relation to what counts as deprivation of liberty for adults under article 5(1) of the ECHR.

The case was brought to the Supreme Court by the attorney general for Northern Ireland. The Minister of Health for Northern Ireland proposed changes designed to provide that not all those who lack mental capacity to decided on their care arrangements should be considered unable to give valid consent to confinement for the purposes of article 5.

Lord Sales and Lady Simler, with whom Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lord Stephens and Lady Rose agreed, said the consequences of the Cheshire West decision - which found by a majority that the ‘acid test’ for deprivation of liberty ‘is whether an individual is subject to “continuous supervision and control” and “not free to leave”’ - had been ‘significant’.

‘We note that there have also been first instance decisions in England and Wales in which judges have sought to limit the application of Cheshire West by redefining the objective element. Such efforts by experienced judges to distinguish a major decision of this court provide evidence that the decision has not provided appropriate guidance and is impeding the proper development of the law.’

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The Strasbourg jurisprudence ‘has never adopted an acid test, either generally or in the more limited context of the living arrangements for those who lack legal capacity’ and the policy-driven approach ‘puts the cart before the horse’, the judgment said.

It added that the ‘bright-line test’ in Cheshire West ‘is too crude in its application’ and leads to an ‘over-extensive interpretation of deprivation of liberty on the basis of a misplaced policy concern that safeguards in relation to vulnerable people have to be provided pursuant to article 5’.

‘In setting out the acid test the majority decision in Cheshire West went beyond the Strasbourg jurisprudence and departed from the long-standing multifactorial approach to determining when a person is deprived of liberty. We respectfully consider that the majority decision in Cheshire West was wrong.’

Overuling Cheshire West, the Supreme Court said: ‘The jurisprudence of the European court is clear in adopting the multifactorial approach and giving weight to valid consent. On such a fundamental issue regarding the proper interpretation of the Convention, it is for the European court to give the lead in laying down the approach to be followed.’

The court found the minister ‘would not be acting incompatibly with article 5 in issuing the proposed revised code’.

In a joint statement, the charities called on the government to issue interim guidance to local authorities and healthcare providers ‘to prevent them being plunged into chaos by this ruling’.

They added: ‘By removing independent checks, advocacy, and automatic access to legal aid, the court has closed the gateway to justice and support for many who need it most.This decision devalues the rights and dignity of disabled people in this country. The UK government should urgently bring in new laws and guidance that strengthens protections for some of the people who are most at risk. This should include clearly explaining how disabled people and their families can challenge breaches of their rights and get the advocacy and support they need.’