A new era for detention in care: Cheshire West Overturned
9 June 2026
By Anogika Souresh and Esme Cairns.
The Supreme Court has handed down a unanimous 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 (“A Reference”) and has overruled its previous decision in Cheshire West [2014] UKSC 19.
This decision has wide-ranging implications for people in care settings across the UK, public bodies, and practitioners, and reframes the approach to deprivation of liberty under Article 5 of the European Convention of Human Rights (“ECHR”).
The decision originated with a reference brought by the Attorney General for Northern Ireland on the meaning of deprivation of liberty for adults (defined as those aged 16 and above) assessed as lacking mental capacity to make decisions about their residence and care arrangements, and living in community settings. The Minister of Health for Northern Ireland (“the Minister”) sought to revise a code of practice in Northern Ireland to provide that even where an adult had been assessed as lacking the relevant mental capacity, they could nevertheless provide valid consent to their care arrangements through the expression of wishes and feelings which go beyond mere acquiescence to their confinement. The Minister sought to issue the revised code of practice under section 288(4) of the MCA 2016 to replace the existing Deprivation of Liberty Safeguards Code of Practice issued under section 288(1) of the MCA 2016.
The issue for the Supreme Court to determine was whether this revised code would be incompatible with Article 5 of the ECHR. If so, the revised code would be unlawful.
Background
Article 5 of the ECHR saliently provides as follows:
1. Everyone has the right to liberty and security of person. No
one shall be deprived of his liberty save in the following cases
and in accordance with a procedure prescribed by law: …
(e) the lawful detention of persons for the prevention of the
spreading of infectious diseases, of persons of unsound mind,
alcoholics or drug addicts or vagrants; …
4. Everyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings by which the lawfulness of
his detention shall be decided speedily by a court and his
release ordered if the detention is not lawful.
In determining what constitutes a deprivation of liberty under Article 5 of the ECHR, the European Court of Human Rights in Storck v Germany (2005) 43 EHRR 6 held that a deprivation has three elements:
- The “objective element” – the person is confined to a particular restricted space for a material period of time;
- The “subjective element” – there is no valid consent to that confinement; and
- State responsibility or attribution – the state is responsible, whether directly or indirectly, for the confinement.
The “paradigm” case for a deprivation of liberty is detention in a prison cell, and much caselaw in the European Court of Human Rights has focused on deprivations of liberty in contexts such as this or analogous situations. Deprivations of liberty in care settings, such as hospitals or social care institutions, fall to be considered under Article 5(1)(e) of the ECHR.
In order to achieve compliance with Article 5(4) and ensure that any deprivation of liberty under Article 5(1)(e) is prescribed by law, a deprivation of liberty in a hospital or care home setting for those over 18 who lack the relevant mental capacity in England and Wales is achieved through an administrative scheme under Schedule A1 of the Mental Capacity Act 2005. In cases where a deprivation of liberty is proposed or taking place in the community, or where the person is aged 16 or 17, a deprivation of liberty requires authorisation by the Court of Protection, or in rare cases through the inherent jurisdiction of the High Court.
The meaning of deprivation of liberty in the context of three individuals in community care settings then fell to be considered by the Supreme Court in Cheshire West [2014] UKSC 19. All three lacked mental capacity to make decisions about their care and residence. The Supreme Court held that all three were deprived of their liberty within the meaning of Article 5 and, in considering the objective element set out in Storck,established the so-called “acid test” for deprivation of liberty: that the person is subject to continuous supervision and control and is not free to leave.
The decision was underpinned by the universal nature of human rights, with Lady Hale stating at paragraph 46 that “…what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities…The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage”.
Pursuant to Cheshire West, it was binding authority that:
(i) an individual who is unconscious but who would be confined if they awoke is subject to deprivation of liberty; (ii) there is a deprivation of liberty even when a person with mental impairment (who would for that reason be confined if they tried to leave) gives every sign of being content with their living arrangements, in anything other than rare and exceptional cases of undefined ambit; (iii) the purpose for which confinement is imposed is irrelevant in making the assessment whether there is a deprivation of liberty; and (iv) the normality of the arrangements to which the individual in question is subject is also irrelevant.
(paragraph 97 of the Supreme Court’s judgment in A Reference).
There was no argument in Cheshire Westabout the other elements of Storck, and it has generally been assumed that a lack of mental capacity to make decisions about care and residence equated to a lack of valid consent to those arrangements.
The practical consequences of Cheshire Westwere significant. There was immediately a huge increase in the number of people who were considered to be deprived of their liberty under Article 5, and so entitled to the legal safeguard under Article 5(4) of a court review of their deprivation of liberty, as well as the appointment of independent representatives to assist them in exercising that right.
The Supreme Court was alive to this in A Referenceand noted at paragraph 101:
In the year before this court’s judgment in Cheshire West, 13,700 referrals were made for a DOLS authorisation. By contrast, in 2023/24, there were 332,455 referrals for a DOLS authorisation in England, and by then there was a backlog of 123,790 cases. A further 19,337 applications were made for a DOLS authorisation in Wales over the same period… These figures do not capture the large numbers of people who are deprived of liberty in settings not covered by the DOLS scheme, including supported living, shared lives and private and domestic settings. The Secretary of State submitted that a best estimate is that there are around 60,000 cases of deprivation of liberty in these other settings, according to the criteria laid down by the majority judgments in Cheshire West.
The application was therefore brought by the Attorney General against that backdrop, and the resulting increased pressure on public funds and resources.
Decision of the Supreme Court
The Supreme Court decided that in order to determine the reference, which considered the subjective element only, they needed to consider both the objective and subjective elements of the test for deprivation of liberty, and indeed all three elements of the Article 5 test. As set out at paragraph 52:
…the fundamental question is whether the individual has been “deprived of his liberty” as that expression is used in article 5. We agree with the Secretary of State that this requires consideration of all three elements of the deprivation of liberty test taken together. It is not possible to consider the concept of absence of valid consent in isolation. As we explain below (para 126), “valid consent” for these purposes is distinct from consent to an infringement of Convention rights as required for a waiver of rights. Valid consent in the present context is an aspect of the assessment whether the relevant parts of article 5 predicated on there being a deprivation of liberty are applicable at all. In that context the starting point must be to identify to what an individual is or is not consenting, and that inevitably requires consideration of the objective element, regarding the circumstances of the confinement. To do otherwise risks developing domestic law by building on what may be a wrong approach to the objective element.
In doing so, this left it open to the Supreme Court to consider whether the majority in Cheshire Westhad erred in their interpretation of the objective element of Article 5.
The objective element- overturning Cheshire West and the “acid test”
The Supreme Court concluded that the majority in Cheshire Westwere wrong to establish the “acid test” for deprivation of liberty, and that “the starting point in assessing whether someone has been deprived of their liberty within the meaning of article 5 is the specific situation of the individual concerned” [paragraph 53(i)].
The Court was clear that ECHR caselaw demonstrates that the acid test is insufficient by itself to show that there is a deprivation of liberty – there must be consideration of a range of factors, no one factor is determinative, and a bright line “acid test” “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…” [paragraph 185].
The Supreme Court determined 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” [paragraph 183].
Determining whether the objective element is met therefore requires a multifactorial assessment and no single factor or test is determinative of whether there is a deprivation of liberty. The Supreme Court noted that relevant factors may include the following:
i. The type of restriction
i. The effect of the restriction on the individual, including their compliance, lack of objection, or tacit agreement
ii. The duration of the restriction
iii. The manner of implementation of the restriction
iv. The “relative normality” of the placement [paragraph 53(iv)]- it seems that the more akin the setting is to the paradigm case of deprivation of liberty (imprisonment in a cell), the more likely the objective component is met, but if the setting is more akin to a “normal” setting, such as a care home or community setting, the less likely the objective component is met
v. The purpose of the placement – for instance for care or therapeutic purposes, particularly in situations which are not akin to the paradigm case of deprivation of liberty
vi. The degree of isolation of the person
vii. The availability of social contacts
viii. The existence of coercion which prevents the person from exercising their right to liberty
ix. Other relevant rights.
The Court also stressed that there is overlap between the objective and subjective components, particularly in considering the effect of the restrictions on the individual and the specific context and circumstances of the restrictions.
The Court was clear that this approach did not mean that the right to liberty under Article 5 meant anything less for those with disabilities and confirmed that: “Liberty means the same thing for everyone… it means physical liberty, including the freedom to go where one pleases” [paragraph 198]. As such, the Court considered that this approach did not discriminate against those who are disabled.
The subjective element – there can now be valid consent, absent mental capacity
The Court also held that a person who lacks mental capacity can still provide valid consent if that person is “conscious of their environment and has a basic understanding of their living circumstances so that they can express their view about their situation” and “manifests their acceptance of the situation they are in”: paragraph 53(ii).
The Supreme Court stated that the subjective element of deprivation of liberty and the notion of valid consent are “autonomous concepts” [paragraph 84]. The ability to give subjective consent to an Article 5 deprivation of liberty is therefore lower than the test for capacity under the Mental Capacity Act 2005.
The Court provided some further guidance at paragraphs 188 and 189:
188. Depending on the circumstances, mere compliance or acquiescence may carry little weight in determining whether there is confinement, particularly if it is accompanied by the administration of sedative medication which is capable of suppressing objections…. The administration of medication (including antipsychotic drugs or tranquilisers) is likely to be highly relevant in supporting the existence of the objective element of confinement because it suppresses the ability and freedom to express wishes and feelings. Its relevance is increased if the administration of it is accompanied by force. But again, the absence of medication may be a relevant factor pointing in the opposite direction.
189. However, if an individual is able to, and does, express their wishes and preferences about their living arrangements, and is happy with them, it will ordinarily be difficult to see how they are being coerced.
As a result, the Minister was able to issue the revised code of practice.
The Court had heard submissions from a number of charities who had intervened in the case and expressed particular concern about this proposal, and the practicalities of ascertaining and evaluating the wishes and feelings of those who lack mental capacity to consent to their care arrangements. The Court noted that there would need to be further guidelines and consideration of the practicalities of this, and appreciated that in some cases this exercise would be difficult, if not impossible, however stated at paragraph 192:
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.
Comment
It is difficult to overstate the importance of this decision, which has immediate effect. It is also important to note that there is no route of appeal to the European Court of Human Rights, as the “victim” requirement stipulated by Article 34 ECHR is not met. As there is no “P”, or indeed any factual matrix underpinning the judgment, there is no person whose rights as set out by the ECHR are violated.
While it is impossible to divorce the decision in Cheshire West from its practical impact, the “acid test” had the benefit of simplicity and certainty and was easily applied by social workers and practitioners throughout the jurisdiction. The Supreme Court states that “whether a placement amounts to a deprivation of liberty as opposed to involving only a restriction on the freedom of movement of an individual is plainly fact sensitive and a question of degree” [paragraph 193]. This approach will therefore involve an analysis of the facts and question of degree by the courts, social workers, and practitioners, for each individual and in every case.
Pending further guidance on the application of the multifactorial test, and the concept of non-capacitous valid consent, which will likely be from first instance judges and hopefully from official guidance in due course, there is likely to be a period of uncertainty. Many individuals who were formerly deprived of their liberty will no longer be so deprived as a result of this decision. This will have implications for existing and potentially historic court cases concerning deprivation of liberty, including those that were issued prior to this decision and are currently before the Court of Protection, as well as for those issuing and subject to standard authorisations in hospitals and care homes.
There will be multiple cases currently before the Court of Protection where the person that the proceedings relate to may not now be subject to a deprivation of liberty. Public bodies and litigation friends will need to review these cases on an urgent basis, and take a view as to whether they say there is a deprivation of liberty. Public bodies may also need to revise the relevant forms for a standard authorisation, and court forms referring to the “acid test” may need updating.
A number of other previous decisions now fall to be questioned in light of this judgment. For example, the Supreme Court referenced ECHR case law which determined that an individual’s views may “validly be replaced by those of someone acting to protect their interests” [paragraphs 164 and 176]. Whilst this was not an issue explicitly decided upon by the Supreme Court, this may bring into question the Court of Appeal’s decision in J v Bath and North East Somerset Council & M [2025] EWCA Civ 478 that a local authority with parental responsibility cannot consent to detention, where the Court of Appeal concludes that “Cheshire West is binding on this court […] and is determinative of the issue in this appeal”. This creates a level of uncertainty in cases where a Care Order is in place.
In circumstances where there is no standard authorisation following this decision, and therefore no applications under section 21A of the Mental Capacity Act 2005, this decision is likely to result in more applications under section 16 of the Mental Capacity Act 2005. This, of course, may result in fewer vulnerable persons being eligible for non-means tested legal aid.
The impact of this judgment on the Court of Protection will undoubtedly be significant. It would not be surprising if the Court of Protection published more judgments in the immediate term to streamline the court’s approach. In any event, examples of the application of concepts such as non-capacitous consent, and the ways in which the multifactorial test is applied, would be welcomed, alongside an updated Mental Capacity Act and Deprivation of Liberty Safeguards Code of Practice and/or Guidance following the decision of the Supreme Court.
Anogika Souresh and Esme Cairns are barristers at 1 Crown Office Row, Brighton.
