On 2 June 2026, the Supreme Court handed down judgment in the case of 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 case concerned the question of what counts as a “deprivation of liberty” under article 5(1) of the European Convention on Human Rights for adults who lack mental capacity to make their own decision about the arrangements for their residence and care, and who are living in community care settings which amount (or potentially amount) to confinement.
In P v Cheshire West and Chester Council [2014] UKSC, the Supreme Court held 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 understanding was that the Supreme Court endorsed the equation of lack of mental capacity with lack of “valid consent” for the purposes of establishing whether there has been a deprivation of liberty.
In Re Attorney General for Northern Ireland, the Supreme Court concluded that Cheshire West was wrongly decided and therefore should be overruled, and determined that:
- Cheshire West went beyond Strasbourg jurisprudence when determining whether a person is deprived of their liberty. In that case, the “acid test” was too rigid and ignored other relevant factors. 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. That assessment is multifactorial and takes account of a range of factors including the type, duration, effects, manner, and purpose of implementation of the measure in question.
- Valid consent - 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. A person may not have mental capacity according to domestic law to make decisions about their residence and care 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, then they can be treated as able to give or withhold “valid consent” to confinement by an expression of their wishes and feelings [para 201]. So, if they were able to express they were happy with the arrangements, that may amount to valid consent, and therefore the subjective limb of a deprivation of liberty would not be present. The court said, “a persons subjective attitude carries significant, indeed usually divisive weight” [para 151].
- The “acid test” in Cheshire West takes no account of the type of setting where an individual receives care and treatment. The type of the setting is important, and the normality of the circumstances in which an individual is cared for is a relevant factor in assessing whether there has been a deprivation of liberty. The court said, “if an individual is living in their own home, in accordance with their wishes and feelings, it makes it less likely that the individual is being subject to a deprivation of liberty within the meaning of article 5. Put another way, the restrictions imposed would need to be more severe or extensive to amount to such a deprivation, such as, for example, a combination of restraint, medication, and seclusion.” [para 193].
- Article 5 is concerned with the physical liberty of the person, not the mere restrictions on liberty of movement. The “acid test” in Cheshire West takes no account of the fact that an individual might be subject to limitations by reason of their own physical or medical condition. For example, an individual so profoundly disabled that they cannot conceptualise leaving let alone physically achieve this is not being prevented / deprived by a third party from doing anything [para 198].
The decision of the Supreme Court has sparked serious concern as to how the most vulnerable people in society will be properly safeguarded, and it has huge immediate implications. In a joint statement published by the National Autistic Society, Mind and Mencap, they say that the judgment “sets us back decades and removes safeguards that history shows us are vital for disabled people”.
The “acid test” for what amounts to a deprivation of liberty is gone, and as a result thousands of people previously deprived of their liberty by nature of their care arrangements suddenly fall outside of the definition. This will leave individuals without an appointed representative to speak up on their behalf to challenge their place of residence and / or restrictive care arrangements, and access to legal aid funding to do so. For many individuals with no family or friends, their appointed representative may be their only visitor and someone they can form a trusting relationship with. The effect the decision may have on these individuals is especially worrying.
A ‘multifactorial analysis’ is now required which considers a range of factors, many of which we imagine will be open to interpretation and lead to inconsistent practice. The decision has also raised many concerns and questions as to how this will work in practice. Who is responsible for conducting the “multifactorial assessment” and when? How will “valid consent” be identified, established, documented, and reviewed, as we know people’s views and circumstances can change? How will current authorisations be reviewed?
Currently, there is no clarity or guidance. The Court of Protection will need to urgently grapple with how this is to be applied both to existing and future DOLS authorisations and DOL orders, and many organisations have pressed the government to issue interim urgent guidance to public bodies.
In relation to our existing cases, we will review application to this judgment and provide advice in due course.
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