In a landmark judgment handed down on 2 June 2026 (A Reference by the Attorney General for Northern Ireland [2026] UKSC 16), the Supreme Court has overruled its own 2014 decision in P v Cheshire West and Chester Council [2014] UKSC 19 (Cheshire West).

The Supreme Court declared that the so-called acid test for determining whether someone is being deprived of their liberty under Article 5 of the European Convention on Human Rights (ECHR) is wrong in principle and has never been adopted by the European Court of Human Rights (Strasbourg). It creates a bright-line test which is too crude in its application, and which leads to an over-extensive interpretation of deprivation of liberty. 

This decision has profound and immediate consequences for health and social care providers, commissioners and local authorities who have, for more than ten years, been applying Deprivation of Liberty Safeguards (DoLS) and Court of Protection authorisation processes based on the Cheshire West definition of deprivation of liberty. Whilst in the long term the judgment is likely to reduce the number of DoLS and Court of Protection authorisations – easing some of the strain and resource demands these systems are under – frontline practitioners will no doubt face uncertainty as they try to grapple with what now constitutes a deprivation of liberty.

This article sets out the background to the case, explains the Supreme Court’s decision and why Cheshire West was held to be incorrectly decided, and includes some key takeaways for health and social care providers and commissioners.

What was the Northern Ireland Reference case about?

In essence, the Attorney General for Northern Ireland sought clarity from the Supreme Court on whether the Minister of Health could exercise his functions under the Mental Capacity Act (Northern Ireland) 2016 and revise the DoLS Code of Practice. The amendment would allow individuals aged 16 and over, who lack capacity to make decisions about their care arrangements, to be considered as consenting to their confinement through expressing positive wishes and feelings – thereby meaning they are not being deprived of their liberty. 

The problem was that this approach to consent was at odds with the decision in Cheshire West. In that case, it was considered that those lacking capacity to consent to their care arrangements cannot give valid consent to their confinement and will therefore be deprived of their liberty even if they are content with the arrangements for their care and treatment and show no desire to leave. Clarity was therefore sought on whether the Minister could amend the Code of Practice as outlined above or whether he was precluded from doing so by the Cheshire West judgment.

More generally, and based on submissions made by various Intervenors, the Supreme Court was also asked to consider to what extent, if any, the decision of Cheshire West needed to be revisited.

We wrote about the background to this case and its potential wider implications in our previous article.

What did the Supreme Court decide in the Northern Ireland Reference case?

The Court made two key findings: 

• The decision in Cheshire West should be overruled – the acid test for deprivation of liberty is wrong in principle. 
• The Minister for Northern Ireland can revise and issue the DoLS Code of Practice (in Northern Ireland) in the way envisaged, since it is not incompatible with Article 5 of the ECHR.

A recap of Article 5 ECHR and the Cheshire West judgment

In Storck v Germany (2005) 43 EHRR 6, Strasbourg held that there are three necessary elements for a deprivation of liberty for Article 5 purposes: 

a)    the objective component: confinement in a particular place for a non-negligible period of time; 

b)    the subjective component: lack of valid consent to the confinement; and 

c)    the confinement being attributable to the state.

The Cheshire West judgment primarily focussed on the 'objective' component and set out an acid test that asked two key questions to determine if someone was being deprived of their liberty:

• whether the person was under continuous supervision and control, and
• whether they were not free to leave.

If those two conditions were met, then provided the confinement was for a non-negligible period of time and imputable to the state, and there was no valid consent to the confinement, a deprivation of liberty would be established. 

In giving the leading judgment, Lady Hale highlighted a number of factors that were not relevant to whether a person was being deprived of their liberty or not, including whether the person objected or was compliant with the arrangements, the relative normality of the care arrangements, and the reason or purpose for the confinement.

It was also accepted by the Court in Cheshire West that a person who lacked capacity under the Mental Capacity Act 2005 (MCA) to consent to their care arrangements could not give valid consent to their confinement for the purposes of the 'subjective' component.

Why did the Supreme Court decide that Cheshire West was wrong?

The approach in Cheshire West has now been authoritatively rejected, and the Supreme Court identified the following distinct and overlapping reasons why Cheshire West was wrong:

• It invented a test that Strasbourg never recognised
• It was driven by a misplaced policy concern and "put the cart before the horse"
• It wrongly treated lack of capacity as equivalent to lack of valid consent
• It wrongly treated crucial contextual factors as irrelevant.

It invented a test that Strasbourg never recognised

Cheshire West purported to derive its 'acid test' for deprivation of liberty from Strasbourg case law, but Strasbourg has never applied such a test. The Supreme Court held that Strasbourg has continued to apply a multifactorial test. 

Under Strasbourg's approach, determining whether a person has been deprived of their liberty requires a careful assessment of their individual, concrete situation. Even if the elements of the Cheshire West acid test are met, that is not sufficient by itself: decision-makers must still consider the individual's concrete situation and the whole range of factors, including the type, duration, effects and manner of implementation of any restrictions. 

The Court reiterated that no single factor is determinative; the boundary between a deprivation of liberty and a mere restriction of liberty is one of degree and intensity. Cheshire West wrongly elevated just two factors into a universal test while disregarding all other relevant considerations. 

It was driven by a misplaced policy concern and "put the cart before the horse"

Underlying Cheshire West was a laudable but ultimately flawed concern: that vulnerable people without legal capacity should have access to independent review and oversight of the conditions in which they are placed. The Supreme Court accepted that this was a genuine and well-intentioned concern, but held that it provided no justification for distorting the meaning of deprivation of liberty under Article 5.

The Court found that the Cheshire West’s bright-line test was too crude in its application and produced an over-extensive interpretation of deprivation of liberty. The Court rejected the idea that protecting vulnerable people requires an extended interpretation of deprivation of liberty under Article 5, explaining that other Convention rights – in particular Articles 2, 3 and 8 – also protect people in care and may do so in less intrusive and more proportionate ways. In other words, Article 5 is not the only, or necessarily the best, safeguarding tool available. The desire to provide safeguards should not drive the interpretation of the right: that is putting the cart before the horse.

It wrongly treated lack of capacity as equivalent to lack of valid consent

Under Cheshire West, the question of 'valid consent' (the subjective element of the deprivation of liberty analysis) was effectively bypassed. It was treated as common ground that a person who lacked capacity under the MCA was, by definition, unable to give valid consent for Article 5 purposes. The Supreme Court identified this as “both unfortunate and confused”. 

The Court made clear that 'valid consent' is an autonomous concept (arising under the ECHR, governed by Strasbourg, rather than by a national law, such as the MCA), and it does not automatically follow that if a person lacks capacity to decide about their living arrangements under the MCA that they cannot give valid consent to their confinement. The Court emphasised that the Strasbourg concept of valid consent focuses on the person's de facto understanding and how they experience their situation.  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.

It wrongly treated crucial contextual factors as irrelevant

Cheshire West instructed decision-makers to ignore a range of factors when considering deprivation of liberty, including the absence of any objection or the person's compliance with their arrangements, the relative normality of the arrangements and the reason or purpose behind the confinement. 

The Supreme Court disagreed with each of these exclusions:

• Objection and compliance: The Court rejected Cheshire West's view that compliance or lack of objection is never relevant to the objective component (noting there is overlap with the subjective component), explaining that objections, arguments, attempts to leave and the use of physical force or restraint can be clear indicators of confinement and deprivation of liberty. Conversely, if care and treatment arrangements accord with a person’s wishes and feelings, and they are happy with them, it may be difficult to conclude that they are being deprived of their liberty. 
  
  The Supreme Court did however warn that the administration of medication (including antipsychotic drugs or tranquilisers) is likely to be highly relevant in supporting the existence of a confinement because it suppresses a person’s ability and freedom to express wishes and feelings.
  
  The Court also recognised the 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, and there will inevitably be a wide spectrum of cases. The cases between the two ends of this spectrum will create varying degrees of difficulty and will require careful consideration to determine what effect the applicable restrictions are having and what attitude the affected individual has to them.
  
  
• Normality of circumstances: The Court held that the normality of the circumstances is relevant and criticised the acid test for ignoring the type of setting where an individual receives care and treatment. The effect of the restrictions on an individual living in their own or family home, with opportunities for leaving their 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. This does not mean that an individual living in their own home could never be subject to a deprivation of liberty. However, 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.
  
  
• Purpose of the restrictions: The Court held that the Cheshire West majority was wrong to discount the potential relevance of the purpose for which confinement measures were imposed.  Why restrictions are in place are part of the picture. Where restrictions are necessary to protect the safety of a person, there is less likely to be a deprivation of liberty but if restrictive measures are imposed with the aim of punishment or coercion against someone’s will, it will more likely constitute a deprivation of liberty. 

Will severely disabled people, with no physical control over their body, be deprived of their liberty if a restrictive care package is in place?

The Supreme Court held that Article 5 relates to “physical liberty of the person”. Where a person is in a “catatonic” state, for example, due to severe dementia, stroke or traumatic head injury, and by virtue of their physical condition cannot exercise any physical control over their body, either by using their own motor skills or asking others to help them move, it cannot sensibly be said that they are being deprived of their liberty. In terms of the Storck criteria, there is no objective element of deprivation and no subjective element of an appreciation of being subjected to a deprivation. 

The Supreme Court endorsed the recent Court of Protection decision in Re SM (Deprivation of Liberty; Severely Disabled Child) [2024] EWHC 493 (Fam), in which a severely disabled, non-verbal and non-mobile 12-year-old girl was found not to be deprived of her liberty despite being under constant supervision and control, because she was “physically incapable of exercising her right to liberty, and mentally incapable of asserting it.”

What were the practical implications of Cheshire West?

The Supreme Court went into detail about the consequences of the Cheshire West acid test. The judgment described explosive growth in DoLS applications following Cheshire West, including 332,455 DoLS applications in England alone in 2023/24 and a backlog of 123,790 cases. The Court noted that if Cheshire West were correct, those backlogs meant that hundreds of thousands of people were, at any given time, being deprived of their liberty unlawfully. The Supreme Court acknowledged that Cheshire West had created considerable practical difficulties and unjustified cost and expense with wide ramifications across the health and care sector.

Beyond the systemic burden, the Supreme Court recognised the human cost of the Cheshire West approach in individual cases. Repeated DoLS assessments were described as intrusive and distressing for the individual and their family, especially where the person was being cared for in accordance with their own wishes and feelings and the assessment process brought no therapeutic or intrinsic benefit.

The Court also noted the impact of the required disclosure of sensitive personal information, including diagnoses, medication, behaviour, risk and family relationships, to authorising bodies and those involved in scrutiny, often without the person's consent and without any corresponding benefit to them. Many health and social care professionals will recognise this experience from practice: families who feel that a formal process designed to protect their loved one is, in reality, adding to the distress of an already difficult situation.

Did courts try to move away from the Cheshire West decision?

The Supreme Court noted that, following Cheshire West, some courts sought to distinguish it so as to avoid or narrow the effect of the acid test. It cited R (Ferreira) v Inner South London Senior Coroner [2017] EWCA Civ 31 as a notable example where the Court of Appeal held that Cheshire West was not of universal application in the context of those with impaired decision-making capacity. The Supreme Court also noted repeated attempts by first-instance Court of Protection judges to limit the application of Cheshire West, such as the decision of Lieven J in Re SM (Deprivation of Liberty; Severely Disabled Child) [2024] EWHC 493 (Fam). The Court considered that such resistance to Cheshire West by experienced judges was evidence that the decision has not provided appropriate guidance and was impeding the proper development of the law. 

Our comment and practical takeaways

This is one of the most significant decisions in mental capacity and deprivation of liberty law for over a decade. It takes immediate effect and has significant implications for everyone working in health and social care including NHS commissioners, NHS providers, the local authority sector and the independent sector. Our key takeaways are as follows:

Existing authorisations will need to be reviewed

Providers, local authorities and commissioners should urgently review existing DoLS authorisations and Court of Protection orders in light of this judgment. Existing cases will need to be reviewed with a triaged approach – it is likely for example that a significant number of community DoL orders currently in place will no longer be required where there is good evidence the service user is able to communicate that they are happy and content with the arrangements for their care, is not in receipt of medications which have a sedative component, is not subject to high levels of restraint and the arrangements for their care have wider family/carer agreement.

The acid test is gone – deprivation of liberty is now a multi-factorial test

The overruling of the Cheshire West acid test does not mean that deprivation of liberty no longer matters or that Article 5 is no longer engaged in health or care settings. The Supreme Court reaffirmed that deprivation of liberty under Article 5 requires a multifactorial assessment of the person's specific situation, taking into account the type, duration, effects and manner of any restrictions, with no single factor being determinative. What is now required is a genuine, rounded assessment of the individual and their circumstances. 

Quality assessments and record keeping are key

The quality of capacity and best interests assessments and record keeping following this judgment is as ever crucial for practitioners, with further emphasis on taking time to properly ascertain an individual’s true understanding, wishes and feelings about the arrangements for their care with regular review of such conversations. These views will be critical to the assessment of whether the care arrangements amount to a deprivation of liberty.

Capacity is no longer automatically determinative

The Court emphasised that 'valid consent', the subjective component to deprivation of liberty, is distinct from capacity to consent to care and living arrangements in the context of the MCA. A person may lack capacity under the MCA and yet still understand and genuinely accept their living arrangements in a way that means Article 5 is not engaged.

Objection, compliance and the person's experience matter again

Professionals should now pay close attention to whether the person objects to, or is distressed by, their arrangements – and equally to whether they appear settled and content. These factors were irrelevant under Cheshire West but are once again legitimate and important considerations – but assessing this is not always straightforward and will need to be recorded carefully and kept under review.

The purpose and nature of restrictions are relevant

Medical necessity, therapeutic purpose and the nature of the setting are all back in the picture. Restrictions imposed solely to provide necessary clinical treatment in an appropriate setting are less likely to amount to a deprivation of liberty than restrictions imposed to confine a person against their expressed wishes.

Severely disabled people with no physical control over their body

Where a person is in a catatonic state or otherwise has no physical control over their body, for example due to severe dementia, stroke or traumatic head injury, the Supreme Court has confirmed that it cannot sensibly be said that they are being deprived of their liberty. Providers and commissioners should therefore consider whether individuals in their care fall within this category, as such cases are unlikely to require DoLS authorisation or Court of Protection involvement.

Guidance from the Department of Health and Social Care is likely to follow

We have a large national team of specialist health and social care lawyers able to assist with any queries you or your organisation may have about this groundbreaking judgment. We will also shortly be running a free online webinar on the implications of this judgment. If you would like to receive an invite to this webinar, please sign up to our mental health and capacity mailing list and we will let you know as soon as any updated guidance is published.