On 2 June 2026 the Supreme Court of the UK issued a decision that is likely to have a significant impact on the safeguards that are in place for people who lack mental capacity and receive care in care homes, hospitals, other residential settings, and other types of supported accommodation in the community.
The background to the recent decision is the Supreme Court’s previous 2014 ruling in the case of Cheshire West (Cheshire West and Chester Council v P [2014] UKSC 19 [2014] AC 896). This case involved the court considering whether three adults who lacked mental capacity to make decisions about their living arrangements were subject to a deprivation of liberty within the meaning of Article 5 of the European Convention on Human Rights (ECHR). In their determination, the Supreme Court ruled that the “acid test” for determining whether someone is deprived of liberty is whether a person is subject to continuous supervision and control, and is not free to leave.
This approach effectively meant that when a person lacked the capacity to make decisions around their residence and/or care according to the Mental Capacity Act 2005, they were unable to provide valid consent to the arrangements of their care. The “acid test” set out in Cheshire West meant that many people who lacked mental capacity but were not actively objecting to their care and living arrangements were nonetheless considered as being deprived of their liberty. This idea was famously encapsulated by Baroness Hale who stated: “a gilded cage is still a cage”. The impact of the Cheshire West case was that additional safeguards were required, in the form of independent advocates, best interests assessors, and authorisation by the Court of Protection, to ensure that the care and residential arrangements for people who lacked mental capacity were in their best interests; regardless of whether the incapacitous person was objecting to those arrangements.
The legal position changed on 2 June 2026 following the Supreme Court’s unanimous decision 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] UKSC16]. The Supreme Court had been asked to consider whether the Minister of Health for Northern Ireland could lawfully issue a revised Code of Practice under the Mental Capacity Act (Northern Ireland) 2016 to allow a vulnerable person (P) who lacks capacity to give valid consent to their care arrangements by expressing their wishes and feelings, and whether this would result in them not being deprived of their liberty under Article 5 ECHR.
In their determination, the Supreme Court exercised its powers under the 1966 Practice Statement to overrule the decision in Cheshire West on the basis that it went beyond the jurisprudence of the European Court of Human Rights and departed from the long-standing multifactorial approach to determining when a person is deprived of their liberty. This restored approach involves looking at the particular realities of the individual’s situation and considering factors such as the type of restrictions they live under, their duration, their effects, and the purpose of the measures i.e., to keep P safe. The Supreme Court held that the difference between a deprivation of liberty and a restriction of liberty is one of degree or intensity rather than nature or substance.
The recent ruling also determined that in order to establish whether P is deprived of their liberty, there must be an established objective fact of confinement and, subjectively, a lack of “valid consent”. The introduction of the concept of valid consent means that while P may lack mental capacity to make decisions regarding their care and residence, if they are able to meaningfully express their wishes, have a basic understanding of their care and living arrangements, and demonstrate that they are happy or content with these arrangements then they can be considered capable of giving valid consent. In such circumstances, they may not be viewed as being deprived of their liberty notwithstanding restrictions like a locked door in a care home.
Additionally, the type of setting in which an individual is being cared for is now deemed to be a relevant factor when considering whether they are deprived of their liberty. For example, the Supreme Court determined that if P is living in their own home according to their wishes and feelings, then it is less likely they are being deprived of their liberty. It was noted by the Supreme Court that in order for there to be a deprivation of liberty at P’s own home there would need to be significant restrictions on P such as a combination of restraint, medication, or seclusion. The potentially controversial implication here is that a deprivation of liberty is now likely to involve some form of coercion or an externally imposed punitive measure, which would represent a significant departure from Baroness Hale’s ‘gilded cage’ concept.
The ruling also held that liberty means the physical freedom to go where one pleases. This is taken to mean that where the nature of P’s health conditions or needs mean they are unable to physically leave where they are, or even consider leaving as being a possibility, this means any deprivation of their liberty is their confinement is a consequence of their organic health conditions and not the result of the actions of a third party such a family or carers. Moving forward, this would indicate that the more freedom of movement P has, the less likely they will be deemed to be deprived of their liberty. This may be the case where P is not be able to leave their home unsupervised but enjoys unlimited access to the remainder of their home.
What Next?
This ruling has changed the legal landscape around deprivation of liberty that has been in existence since Cheshire West. This has significant and immediate practical implications for the legal profession, local authorities, Integrated Care Boards, advocacy organisations and, most importantly, all the vulnerable persons who were entitled to have safeguards in place because they were deemed as being deprived of their liberty, as well as their families, friends, or carers. The Supreme Court did not, in its judgment, provide guidance as to how these changes can and should be implemented, though initial guidance has recently been provided by the Department of Health and Social Care and the Ministry of Justice for England and Wales. In the meantime, professionals involved in deprivation of liberty matters are required to apply the new tests immediately and give careful consideration as to what constitutes a deprivation of liberty on the ground, in this post Cheshire West world.
