care

A new era for detention in care: Cheshire West Overturned

9 June 2026 by Guest Contributor

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.