
Amelia Walker
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Aug 10, 2026
242: The Supreme Court recalibration of the Deprivation of Liberty and what it means
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6:40

Amelia WalkerGUEST
So Rosalind, it started with the Minister for Health for Northern Ireland wanted to issue a revised code of practice, which I think you referred to, onto the provisions in Northern Ireland, which is the Mental Capacity Act 2016.

Amelia WalkerGUEST
And the revision to the code of practice was to provide that not all those who lack mental capacity to decide on their care arrangements should be considered unable to give valid consent.

Amelia WalkerGUEST
And I'll go on to break that down in a minute as to how that then intersects with the European jurisprudence.

Amelia WalkerGUEST
But just to sketch us in running into how this case kicked off in the first place, and the minister's position was that the Cheshire West case, which you've referred to, which we'll dig into a little bit more shortly, went beyond the boundaries of the European jurisprudence because it didn't allow for consideration of the views of the affected individual.

Amelia WalkerGUEST
And we'll have a look at what the Supreme Court actually said in Cheshire West in a minute.

Amelia WalkerGUEST
And the Attorney General's position advancing the position of the Minister for Health in Northern Ireland in the Supreme Court in the reference was that the revised code would in fact comply with the convention because it would allow for considerations, uh, of the views of the affected individual.

Rosalind EnglishHOST
Perhaps we ought to look at Article 5 in some detail and the provisions in Article 5 which justify deprivation of liberty in the context of care homes, because that's really what we're talking about here.