The End of the Cheshire West Era: The Supreme Court’s New Tests for Objective and Subjective Deprivations of Liberty
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Victoria Butler-Cole KC, Neil Allen and Arianna Kelly issue a rapid response seminar on the Supreme Court’s decision.
The Supreme Court has set aside the decision of P v Cheshire West and Chester Council [2014] UKSC 19. In 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, the Supreme Court has determined that:
- The Cheshire West ‘acid test’ for identifying the objective element of deprivation of liberty was wrong and departed from Strasbourg case law;
- A person without mental capacity to make decisions about their residence and care arrangements can give subjective consent to what would otherwise be a deprivation of liberty, so as to take their circumstances out of Article 5 ECHR.
Join Victoria Butler-Cole KC, Neil Allen and Arianna Kelly for a rapid response seminar at 1:00PM today for a discussion of what the Supreme Court has decided the objective and subjective tests for deprivations of liberty are, and the judgment’s profound implications for the approximately 400,000 people in England and Wales who are currently considered to be deprived of their liberty.

About the speakers
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Victoria Butler-Cole KC Victoria specialises in health and social care. Her work includes public law, community care, Court of Protection, medical treatment disputes involving babies and children, inquests, human rights claims, and regulatory appeals. She is the co-founder with Alex Ruck Keene of the 39 Essex Mental Capacity Report, and is recognised as one of the leading barristers in this field, having appearing in many of the leading cases. She is a past Chair of the Court of Protection Bar Association. Victoria has a particular interest in ethics. She sits as a Recorder on the Western Circuit and as a Deputy High Court Judge. |
Neil Allen Neil has particular interests in human rights, mental health and incapacity law, and has been involved in many of the leading cases in this field, including Cheshire West, N v ACCG, and Re X, as well as many reported cases in the lower courts which have shaped the law. Neil provides specialist advice and representation, as well as expert legal training to frontline health and social care practitioners, which is complemented by his website, www.lpslaw.co.uk. He regularly publishes his views on the development of the Mental Capacity Act 2005 and the Mental Health Act 1983 in blogs, journals and books. He also teaches undergraduate and postgraduate university students as a senior lecturer at the University of Manchester and provides pro bono services through his Dementia Law Clinic. |
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