Supreme Court overrules Cheshire West judgment on deprivations of liberty and valid consent

However, three charities that intervened in the case have described today’s ruling as “the biggest rollback of disability rights in a generation”.

The case followed a reference by the Attorney General for Northern Ireland (the appellant) of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998.

The key issue to be considered was:

“Does the Minister of Health for Northern Ireland have the power to revise the Deprivation of Liberty Safeguards Code of Practice 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?”

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 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.

The Attorney General for Northern Ireland submitted that the proposed revision to the Code is compatible with the ECHR because it would take persons who lack capacity but consent to their confinement through the expression of their wishes and feelings outside of the scope of article 5.

However, this approach to consent would differ from that taken by the Supreme Court in P v Cheshire West and Chester Council and another [2014] UKSC 19.

By a majority, the Supreme Court held in Cheshire West that the “acid test” for a deprivation of liberty is whether an individual is subject to “continuous supervision and control” and “not free to leave.”

The result of the conventional understanding of the 2014 ruling has been that where a person lacks mental capacity to make a decision about their living arrangements, and their actual living arrangements satisfy the “acid test” (ie the person is subject to continuous supervision and control, and is not free to leave), they are to be treated as being deprived of their liberty for the purposes of article 5.

This means that their deprivation of liberty must be subject to safeguards, namely that it must be “in accordance with a procedure prescribed by law” (article 5(1)), and the detainee is entitled to “take proceedings by which the lawfulness of [the] detention shall be decided speedily by a court” (article 5(4)).

The Cheshire West ruling led to a dramatic increase in the number of applications for authorisation under the Deprivation of Liberty Safeguards (DoLS) and court applications for those who fell outside the DoLS scheme.

A rare seven-justice panel of the Supreme Court heard the case in October 2025.

In its ruling today, the Supreme Court unanimously held that the Minister of Health for Northern Ireland would not be acting incompatibly with article 5 of the Convention in issuing the revised code, and that it was therefore within his competence to issue it.

Lord Sales and Lady Simler gave the judgment 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, with which Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lord Stephens and Lady Rose agreed.

The Supreme Court began by clarifying the test it must apply in order to determine whether or not in issuing the revised code of practice, the Minister would be acting incompatibly with article 5.

Lord Sales and Lady Simler said: “In this case, the appropriate test to be applied is that discussed in R (A) v Secretary of State for the Home Department [2021] UKSC 37; [2021] 1 WLR 3931 to assess the lawfulness of policies or statements of practice issued by a Minister to give direction to decision-makers, namely “does the policy in question authorise or approve unlawful conduct by those to whom it is directed?””

The Supreme Court noted that if the decision in Cheshire West was correct in its interpretation of deprivation of liberty for the purposes of article 5, the revised code would involve the authorisation or approval of treatment of persons with impaired mental capacity by care providers in settings, which in many cases would constitute an unlawful deprivation of liberty. It would therefore be outside the competence of the Minister to issue it.

However, the Supreme Court found that the majority in Cheshire West erred in their analysis of the Strasbourg court’s case law regarding the meaning of deprivation of liberty in article 5 and in the interpretation they gave to that term.

Lord Sales and Lady Simler said: “We conclude that it is important for the proper application of the Convention rights given domestic effect by the Human Rights Act, the MCA 2016 and the MCA 2005 and for the proper development of the law in this area that the error in Cheshire West should be corrected. Therefore, this is a case in which it is appropriate to apply the 1966 Practice Statement [House of Lords’ 1966 Practice Statement (Judicial Precedent) ([1966] 1 WLR 1234, which continues to govern the practice of the Supreme Court] and for this court to depart from Cheshire West.”

The Supreme Court judges said the Strasbourg jurisprudence confirmed that the European court had continued “to apply the multifactorial test in determining when an individual is deprived of liberty and provides a clear indication of the nature and extent of restrictions that are required before a ‘person of unsound mind’ will be found to be detained in the relevant sense in a psychiatric hospital or social care institution.

“It has never adopted an acid test, either generally or in the more limited context of the living arrangements for those who lack legal capacity. We have some sympathy with the desire to establish a universally applicable bright-line test to assist decision-makers (albeit a bright-line test would have the negative feature of failing to be appropriately responsive to the justice of particular situations arising across the whole field of its application).

“Further, although understandable in context, the underlying policy concern of the majority in Cheshire West, that it is only by treating the vulnerable individual as being deprived of their liberty that one can be confident that there will be regular reviews of the suitability of their placement and an independent person appointed with a duty to pursue the individual’s best interests, is also not a good reason for extending the definition of deprivation of liberty…..”

Lord Sales and Lady Simler concluded that 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.

The judges said the majority decision in Cheshire West was wrongly decided in six respects.

First, while the acid test formulated in Cheshire West refers to elements which are relevant as part of the multifactorial test, application of the acid test is not sufficient by itself to show that there is a deprivation of liberty according to the Strasbourg jurisprudence.

“Put another way, it may well be that an individual cannot be subject to a deprivation of liberty under article 5 without the acid test being met, but this is not sufficient. To determine whether an individual is subject to such deprivation, a court must focus on their concrete situation and must take account of the whole range of factors in the particular case, including the type, duration, effect and manner of implementation of the measures in question.”

Lord Sales and Lady Simler suggested that Cheshire West “creates a bright-line test which is too crude in its application and which 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 our view, this policy-driven approach puts the cart before the horse. A crude application of article 5 cannot be a cure for the problems posed by caring for vulnerable adults with mental health or other cognitive disabilities. Nor is it necessary to adopt that interpretation of article 5 to safeguard the interests of such individuals, since other legal regimes and Convention rights apply in their case.”

Moreover, the judgments of the European court show that no single factor is determinative, they added.

Secondly, the majority in Cheshire West was wrong to conclude that a “person’s compliance or lack of objection” is never legally relevant to the question of objective confinement. “As the Strasbourg jurisprudence shows, confinement must be established as an objective fact and subjectively there must be an absence of valid consent: Storck, para 74. Moreover, the Strasbourg jurisprudence shows that these are not hermetically sealed concepts and there is inevitably some overlap.”

Lord Sales and Lady Simler said they recognised that “there may be considerable evidential difficulties in ascertaining whether a person who is severely autistic or who has other profound cognitive disabilities is content with and not objecting to their living arrangements. Inevitably there will be a wide spectrum of cases, with cases at one end where eliciting evidence of positive expressions of wishes and feelings about the care placement will be impossible, and at the other end, cases….where a tacit positive indication of wishes and feelings showing contentment with the arrangements can be ascertained”.

The judges said that in the latter cases, such evidence is relevant and should not be excluded from consideration. “The cases between the two ends of the spectrum will create varying degrees of difficulty and will require anxious consideration to determine what effect the applicable restrictions are having and what attitude the affected individual has to them. As we have said, it may be that if nothing more than mere compliance or acquiescence is a feature of the case, that is not enough. If the individual is capable of expressing a view and there is serious doubt about their attitude, no inference should be drawn.”

Lord Sales and Lady Simler said they did not accept a theme of the intervening charities’ case that because this exercise of evaluating the wishes of an individual who lacks legal capacity to consent to their care arrangements is going to be difficult or impossible in some cases, possibly even many cases, there should be no attempt to consider lack of objection or wishes and feelings in any case at all.

“It is contrary to the fundamental principle underlying the Convention that individuals should be treated with due regard to their dignity as persons and that their own views should be accorded respect,” they said.

“It is also too crude as an approach in this area, where sensitive judgments are required. The argument that, because some adults will find it difficult to communicate and express views and feelings about their placement, the views of no adults should be capable of vouching consent creates an arbitrary threshold and may lead to unnecessary and intrusive interference with the private lives of those adults with impaired mental capacity who are able to express views and feelings.”

Thirdly, the judges said the European court has emphasised that article 5 is concerned with the physical liberty of the person and is not concerned with mere restrictions on the liberty of movement.

“Yet the acid test takes no account of the type of setting where an individual receives care and treatment and draws no distinction between the position of an individual in, say, a category A prison or a high security psychiatric hospital on the one hand, and a person supported to live as independently as possible in their own accommodation or in their family home.”

Lord Sales and Lady Simler added: “The effect of the restrictions on an individual living in their family home with their family, or living in their own home, with opportunities for leaving the place of residence for recreation, education or social contact, is likely to be very different from the effect on an individual held in a psychiatric hospital or a prison. The normality of the circumstances in which an individual is cared for is a relevant factor.”

Fourthly, the acid test in Cheshire West “takes no account of the innate limitations to which an individual may be subject by reason of their own physical or mental condition. To the extent that the majority assumed that such a person would be subject to a deprivation of liberty under article 5…, we disagree.”

Fifthly, the majority in Cheshire West were wrong to discount the potential relevance of the purpose for which measures of confinement were imposed.

Sixthly, the approach taken by the majority in Cheshire West equates lack of legal capacity with lack of valid consent (as part of the subjective element of the article 5 test); “and this appears to have led them to treat the subjective element as not being in play in the three cases”. 

This is wrong, Lord Sales and Lady Simler said: “To treat the lack of legal capacity as an inability to express valid consent confuses the analysis. A person may not have mental capacity to make decisions about their care and residence arrangements, but if they have a basic level of awareness and consciousness of their living arrangements that is sufficient to enable them to know and communicate whether they are happy or unhappy with them, they may be treated as able to give or withhold valid consent to confinement by an expression of their wishes and feelings.”

Lord Sales and Lady Simler said they would “decline to follow Cheshire West and would overrule it. The so-called acid test has never been adopted by the European court and is wrong in principle.”

Responding to the ruling, charities the National Autistic Society, Mencap and Mind – which intervened in the case – said in a joint statement: “This judgement sets us back decades and removes safeguards that history shows us are vital for disabled people. 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. Stripping away these safeguards makes it easier for abuse and neglect to go unnoticed behind closed doors. A litany of previous wrongdoings demonstrate how closed cultures, lack of independent oversight and restrictive care can lead to abuse scandals and decisions like this fly in the face of everything we've learnt.

“We are calling on the UK government to act with urgency to issue interim guidance to local authorities and health and care providers to prevent them being plunged into chaos by this ruling. It 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.

“To the many people that will be affected by this ruling now and in the future, we stand with you and you are not alone. This decision devalues the rights and dignity of disabled people in this country.”

Lottie Winson

Source: The judgment and the Supreme Court's press summary.