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

Case summary

Case ID

UKSC/2025/0042

Parties

Appellant(s)

Attorney General for Northern Ireland

Respondent(s)

Advocate General for Northern Ireland

Intervener(s)

Secretary of State for Health and Social Care

Issue

Does the Minister of Health for Northern Ireland have the power to revise the Deprivation of Liberty Safeguards Code of Practice (“the Code”) so that persons aged 16 and over who lack capacity to make decisions about their care and treatment can give valid consent to their confinement through the expression of their wishes and feelings?

Facts

The Code is issued under the Mental Capacity Act (Northern Ireland) 2016. It details the process and criteria for authorising the deprivation of a person’s liberty in order to provide them with care and treatment when they lack the mental capacity to consent. At present, the Code requires that the confinement of persons aged 16 and over for the purposes of care and treatment is formally authorised. The Minister intends to revise the Code so that these persons can give valid consent to their confinement, even though they lack capacity, through the expression of their wishes and feelings. The Northern Ireland Act 1998 limits the Minister’s powers so that the proposed revision to the Code will only be lawful if it is compatible with the rights protected by the European Convention on Human Rights (“ECHR”). These include the right to physical liberty guaranteed by article 5.

Date of issue

13 March 2024

Case origin

Reference

Appeal

Hearing dates and panels are subject to change

Justices

Lord Reed

Lord Hodge

Hearing dates

Start date

20 October 2025

End date

20 October 2025

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