The recent Supreme Court case, 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 [2026] UKSC 16, has attracted differing views. It concerned whether the Minister of Health for Northern Ireland has the power to revise the deprivation of liberty safeguards (DoLS) to allow over-16s lacking mental capacity to validly consent to confinement by expressing their wishes and feelings.
Contrary to widespread speculation, it was never about whether there should be a removal of safeguards that prevent vulnerable people from being abused. Rather, it addressed whether the Northern Ireland Assembly has the authority to revise its DoLS code of practice so patients’ views are considered.
In my view, the judgment is well-founded. It recognises that assessing the necessity for deprivation of a person’s liberty is a nuanced endeavour and should consider the patient’s genuine
