Rethinking “Liberty”: Supreme Court Rewrites the Rules on Consent and Care

In a landmark judgment, the UK Supreme Court has overturned its own 2014 Cheshire West precedent, reshaping how the law defines a “deprivation of liberty” for vulnerable adults in care settings. The ruling clarifies that a lack of legal mental capacity does not automatically mean a person cannot give valid consent to their living arrangements, marking a major shift toward a more nuanced – and complicated – approach under human rights law.

Prior situation 

In 2014, the Supreme Court handed down Cheshire West, which set down the “acid test,” which provided a bright line of when someone was deprived of their liberty:

• When under continuous supervision and control, (the objective test)
• And was not free to leave (subjective test)
• Where the individual lacks capacity to consent to the arrangements.

If all three were satisfied, the person was unable to provide valid consent to the confinement and so was being deprived of their liberty, and should be subject to the Deprivation of Liberty Safeguards (DOLS) processes. 

Northern Ireland authorities proposed revisions to the DOLS Code of Practice to allow persons aged over 16 who lack capacity to give valid consent through the expression of their wishes and feelings. The argument was that a person who may lack capacity to make a decision can still express a preference and thus give valid consent if they agree with their care arrangements. Recognising such a situation as lawful would reduce the scope of Article 5 Human Rights Act and reduce the necessity for formal DOLS authorisations in such cases. The Attorney General of Northern Ireland made a reference to the Supreme Court to determine the lawfulness of that approach. 

New situation

In a unanimous decision, the Supreme Court now says the imposition of the ‘acid test’ is wrong in law because it goes beyond the jurisprudence of the European Convention, which does not support such a simplistic analysis. Instead, deprivation of liberty should be determined by a multifactorial test (“the Guzzardi basket”) considering the person’s whole situation and take into account a range of factors including:

• Type of restriction(s)
• The duration
• The effects
• The manner they are implemented 
• The purpose for which they are imposed. 

Cheshire West’s two limb analysis was held to be too crude and too rigid. It wrongly ignored other relevant factors and over-extended the concept of deprivation of liberty on the basis of policy concerns that safeguards for vulnerable people had to be provided pursuant to Article 5 ECHR. In the 2026 case, the Supreme Court held that other legal regimes and ECHR rights exist to safeguard vulnerable individuals, including: Articles 2, 3 and 8; parts of MCA 2005 including the Code of Practice; mandatory minimum of annual reviews of restrictions; and local authority safeguarding duties. Therefore, an overly straightforward definition of deprivation of liberty under Article 5 was not required in addition to those in order to provide safeguards. 

What is “valid consent”?

It was held that person’s compliance with care may be legally relevant to the question of objective confinement, but is not definitive. Confinement must be established as objective fact and then subjectively there must be an absence of valid consent, but there is some overlap. If a person is able to and does express their wishes and preferences about living arrangements and is happy with them, then they are not being coerced and may not be being deprived of their liberty. 

A lack of mental capacity to decide something is not a total inability to express valid consent. These are distinct and different concepts. The Court was careful to stress that this is in respect of Article 5 only. A person may lack capacity to make decisions about their care or residence, but they if they can meaningfully express their wishes and accept their situation that may amount to valid consent. Subjectively, they are not being deprived of their liberty if they can so express their agreement. 

This means that there will, in effect, be two categories of deprivation – those who are incapacitated in the ordinary way, with authorised restrictions in place; and those who are “incapacitous but validly consenting”. 

Setting of care is important

The Supreme Court also noted that the setting of care is important. There is a difference between detention in a psychiatric hospital or prison, vs a person living in their own home with care-related restrictions, but still with the opportunity to leave for recreation, education, or social contact, etc. In the latter situation, the person who is living at home in accordance with their wishes and feelings may be deprived of their liberty within the meaning of Article 5, but the restrictions would need to be more severe or extensive – e.g. amounting to physical/chemical restraint or seclusion – than simply preventing them from leaving the house.

“Liberty” means physical liberty

The Court also observed that liberty means the ability to go where one pleases. Persons who are, by way of profound physical illness or disability are physically unable to exercise the ability to go where they please (e.g. due to being minimally/totally unconscious, or significantly cognitively and physically impaired by end stage dementia), these people are not being prevented by a third party from doing something they cannot conceptualise doing let alone physically accomplishing it. Thus, they are not being deprived of anything.  

Practical changes for practitioners

It has been estimated that following Cheshire West, approximately 400,000 people came to be regarded as being deprived of their liberty and had to undergo DOLS applications in order to be lawfully deprived of their liberty. That decision is now overturned. The judgment takes effect immediately – there is no period for adjustment and implementation with a change in case law. 

The new decision narrows the scope of the legal definition of deprivation of liberty, and so therefore narrows when the Deprivation of Liberty Safeguards are applied and in what way. The ruling may prompt updates to the Code of Practice and other guidance under the Mental Capacity Act. It will also affect the upcoming implementation of the Liberty Protection Safeguards which are to replace DOLS. 

Care organisations will need to consider implementing new frameworks and training for procedural safeguards to take account of consent by expression. This will need to include detailed and objective recording of restrictions, the expressions of views and/or subjective consent by the person, and regular reviews of the person’s views. The new judgement shifts away from the acid test to a more contextual, multifactorial assessment, requiring new training and more analytical skills on the part of the assessors than the old acid test. 

The decision also reinforces the need for robust capacity assessments. Under the previous framework, capacity operated as a gateway issue, if P lacked capacity, they could not consent, and any qualifying restrictions would automatically engage Article 5, making capacity a relatively blunt trigger for safeguards.

In the absence of the Cheshire West acid test, that position is no longer sufficient. A superficial or flawed assessment will not enable NHS Trusts or care providers to determine whether apparent compliance is in fact meaningful acceptance of the arrangements, or simply a product of impairment. In other words, whether there is valid consent for Article 5 purposes, or whether P does not properly understand the nature and effect of the restrictions imposed.

On the face of it, the new decisions should reduce the number of DOLS applications and assessments being made and processed in all local authority jurisdictions, which will no doubt be welcome news to those bodies and applicant care providers. However, it also makes the more borderline edge cases harder to determine without the clarity of the simplistic acid test. For practitioners, this introduces an important discipline, namely not to conflate “wishes and feelings”, which remain central to best interests decision-making, with “valid consent” for the purposes of Article 5. The two concepts are now more closely aligned than before, but they are not the same. These borderline and complex situations may give rise to an increase in applications to the Court of Protection. 

It is also unclear how a person who lacks capacity but through their expressed wishes are perceived to consent to restrictions may come to challenge them or test the lawfulness of their detention. In circumstances where there is no recognised deprivation of liberty, the usual procedural safeguards and routes of challenge may not be engaged, leaving a potential gap in oversight which is likely to require clarification through future case law.

Where there are disputes or borderline cases, until further guidance is issued, practitioners should seek a review and agreement with public bodies who have the permission to deprive persons, potentially to agree the current Order or authorisation should lapse if appropriate. If agreement cannot be reached, it would be appropriate to go back to the Court for clarification. 

We expect that a number of test cases will be litigated regarding, amongst other issues, the appropriate evidentiary basis for consent without capacity, and to consider what guidance can be given for situations in which “incapacitous consent” can fluctuate. It is also expected that consultations will be run and changes made to guidance, court forms, and the Code of Practice.  

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