Cheshire West Overruled – New Approach to Deprivation of Liberty and Consent
Question for the Supreme Court
On 2 June 2026, the Supreme Court handed down 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. This is the most significant development in deprivation of liberty law since Cheshire West itself.
Although arising from a proposed revision to Northern Ireland’s Deprivation of Liberty Safeguards Code of Practice, the case carried significance far beyond Northern Ireland. The Court was asked to consider whether a person aged 16 or over who lacks capacity to make decisions about their care and treatment may nevertheless provide legally effective consent to arrangements that would otherwise amount to a deprivation of liberty through the expression of their wishes and feelings.
Given the question raised, the case was a direct challenge to the principles associated with P v Cheshire West and Chester Council [2014] UKSC 19.
Under the Cheshire West approach, where a person aged 16 or over lacks capacity and is subject to arrangements amounting to an objective deprivation of liberty imputable to the state, formal authorisation is required. The proposed revision sought to permit a person who lacks capacity to be treated as consenting to those arrangements where their wishes and feelings demonstrate agreement with the placement.
The Judgement
In a unanimous judgment delivered by Lord Sales and Lady Simler, the Court has held that the majority decision in P v Cheshire West and Chester Council [2014] UKSC 19 was wrong in its interpretation of Article 5 ECHR and should no longer be followed. The Court’s central conclusion is that the Strasbourg concept of “valid consent” is not synonymous with the domestic law concept of capacity. A person may lack capacity to make decisions regarding care and residence under the Mental Capacity Act framework but nevertheless be capable of providing valid consent for Article 5 purposes.
The Court concluded that the proposed Northern Ireland Deprivation of Liberty Safeguards Code of Practice is compatible with Article 5 and that adults who lack capacity under domestic mental capacity legislation may nevertheless be capable of providing “valid consent” for the purposes of Article 5 through the expression of wishes and feelings.
The summary view of the Court at paragraph [53] is key reading:
“For the reasons explained in detail below, we would answer the referred question in summary as follows:
(i) The starting point in assessing whether someone has been deprived of liberty within the meaning of article 5 is the specific situation of the individual concerned, and the assessment is multifactorial, with account taken of a whole range of factors including the type, duration, effects and manner of implementation of the measure in question. This was the approach set out in Engel v The Netherlands (1979–80) 1 EHRR 647 (“Engel”) and Guzzardi v Italy (1981) 3 EHRR 333 (“Guzzardi”) and it has been consistently applied by the European court since then, and in many different contexts, including the one with which we are here concerned. The judgments of the European court show that no single factor is determinative.
(ii) In addition to the objective element of confinement in a restricted space for a significant period, an individual will only be considered to be deprived of liberty if, as an additional subjective element, they have not validly consented to the confinement in question (Storck). Valid consent is therefore a powerful factor in the assessment. It is an autonomous concept and not to be equated with the concepts of consent for the purpose of waiver of rights under the Convention or of legal capacity in domestic law. The fact that an individual lacks legal capacity to decide on their living and care arrangements does not necessarily mean that they are de facto unable to understand and consent to those arrangements in a manner that prevents those arrangements from becoming a deprivation of liberty (see Stanev, HL and the other judgments of the European court considered below). On the contrary, an individual without legal capacity under domestic law, but who is conscious of their environment and has a basic understanding of their living circumstances so that they can express their view about their situation, who manifests their acceptance of the situation they are in, should have their opinion respected when an assessment is made of whether they are deprived of liberty under article 5.
(iii) Although the objective and subjective elements of deprivation of liberty are often considered sequentially by the European court in its assessment of an applicant’s specific situation, there is an overlap. The requirement to take account of the “type” and “effects and manner of implementation” of the measure in question means that the assessment of the objective element can take account of the specific context and circumstances of restrictive measures that are different from the paradigm of confinement in a cell.
(iv) The approach of the European court means that the effect of restrictions on an individual, including their compliance and the lack of objection if they are capable of objecting or giving tacit agreement, is relevant in assessing the objective element of confinement. The relative normality of the placement is also a relevant factor in this assessment. Similarly, in situations that are far from the paradigm of confinement in a cell, the purpose for which a measure has been taken is a factor to be considered.
(v) The European court has recognised that the process of assessing whether there has been a deprivation of liberty is no easy task in some contexts and may give rise to difficulties, especially in borderline or marginal cases. Equally, it may sometimes be difficult to ascertain the true feelings or preferences of vulnerable individuals who do not have mental capacity to decide on their living arrangements. The approach should be practical and realistic. Where there is serious doubt, no inference of valid consent should be drawn.
(vi) It follows from the analysis of the Strasbourg jurisprudence in section 8 below that, in setting out the acid test, the majority decision in Cheshire West departed from the longstanding multifactorial approach to determining whether a person is deprived of liberty within the meaning of article 5 and is wrong (as we explain in section 9 below).
(vii) For the reasons given in section 3 above, we have concluded that the 1966 Practice Statement should be applied and that Cheshire West should be overruled.
(viii) The Minister would not be acting incompatibly with article 5 in issuing the Revised Code and it is therefore within competence for him to proceed to issue it.”
The Court held that the Strasbourg authorities have never adopted an acid test and have instead consistently applied a multifactorial assessment focused on the individual’s concrete situation. The acid test may remain relevant, but it is no longer determinative.
Instead, courts and practitioners must consider a range of factors, including:
- the type of restrictions imposed;
- their duration and effect;
- the manner in which they are implemented;
- the purpose of the arrangements;
- the individual’s response to them;
- the degree to which the arrangements resemble ordinary living conditions; and
- the extent to which the situation resembles the paradigm case of confinement, namely imprisonment in a cell.
The Court did recognise there would be a spectrum regarding inferred consent, addressing that those with profound cognitive disabilities and severe autism would be at one end, and those where there is positive expression of wishes and feelings at the other. The Court set out at [191] that:
“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.”
Importantly, the Supreme Court has given effect to view that profound physical disabilities, resulting in significant supervision and control by way of “care” does not amount to a deprivation of liberty (referencing the SM case before Lieven J). The Court expressed at [197] that:
“Our view accords with the analysis of Professor Eldergill, discussing the position of a person in the final sad stages of dementia, confined to bed and so cognitively impaired as to be unable to form the idea of swallowing, let alone moving about. In this situation, no one is interfering with, limiting, or controlling their liberty to do anything they can do…”
Practical Impact
The full judgment will require careful reading and consideration, a reactive article giving the headlines is unlikely to do this justice. But, several immediate consequences are apparent:
- The acid test is no longer the definitive answer to whether Article 5 is engaged and Cheshire West is expressly overruled;
- Evidence of a person’s wishes, feelings, level of awareness and lived experience will assume far greater significance than under the post-Cheshire West framework;
- Practitioners will need to undertake a broader assessment of the person’s circumstances rather than focusing solely on supervision, control and freedom to leave;
- DoLS authorisations are likely to substantively drop off.
The practical consequence may be that significantly fewer care arrangements will amount to a deprivation of liberty. Much of the post-Cheshire West increase in DoLS authorisations arose because the acid test captured large numbers of compliant individuals living in care settings. The Supreme Court’s return to a multifactorial approach may substantially reduce the number of cases requiring authorisation, although the extent of that reduction remains to be seen.
A thought for practitioners will be the challenge to assessments of “valid consent” – given such determination by authorities would result in Article 5 not being engaged, and thus no Urgent or Standard Authorisation being necessary and the Court of Protection not an available jurisdiction. In short, the answer will be Judicial Review.
Even with the law change, existing authorisations will remain lawful, authorities will need to approach cases cautiously and with significant guidance, and the MCA Code has not been updated. It is likely there will be a period of uncertainty before operational practice catches up.
The judgment represents a fundamental shift away from the bright-line approach which has dominated deprivation of liberty practice since 2014. Whether that results in greater respect for autonomy, fewer authorisations, or increased uncertainty at the assessment stage remains to be seen. What is clear is that practitioners can no longer approach Article 5 through the lens of the Cheshire West acid test alone.
PLP will be hosting a Law with Lunch on 11 June 2026 at 1pm to discuss the Judgment in more detail and to consider how we apply this moving forward – to join, please email events@parklaneplowden.co.uk
