The Supreme Court has now handed down its long‑awaited 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. 

In a unanimous decision, the Court has fundamentally recalibrated how ‘deprivation of liberty’ is understood under Article 5 of the European Convention on Human Rights (ECHR). And, in doing so, has overturned the long-accepted ‘acid test’ in Cheshire West.

For health and social care providers, this is not simply academic. It goes directly to the lawfulness of care arrangements, when safeguards are required, and how far the regulatory burden and protection framework extends.

Background

Article 5 ECHR protects the right to liberty, requiring that any deprivation of liberty is lawful and subject to judicial oversight.

Since 2014, the practical trigger for those protections had been the Cheshire West  ‘acid test’ – i.e., if a person was under continuous supervision, not free to leave, and could not consent, they were considered deprived of liberty. This was irrespective of how ‘normal’ the care setting might appear.

To protect the safety and human rights of those individuals, a deprivation of liberty under this test triggered formal safeguards under the Mental Capacity Act 2005, including independent reviews and the right to challenge care arrangements, preventing abuse of the system.

Whilst this had been criticised for causing a huge backlog of applications to local authorities and to the courts, it provided a vital framework to safeguard many of the most vulnerable in society.

Outcome

The Supreme Court has unanimously decided that Cheshire West was wrong in principle and should be overruled.

In its place, the court has reinstated a more complex, Strasbourg‑aligned approach:

1. Holistic view - decision‑makers must look at the whole context including the type of care, its duration, its effects, how it is implemented, and its purpose. 
    
2. Apparent compliance - A person’s compliance or lack of objection may now be relevant when considering whether they are truly deprived of their liberty.
    
3. Context matters – the type of setting and ‘normality’ of the arrangements is relevant. Restrictions in a person’s home or community setting may be less likely to amount to a deprivation of liberty than those in a more formal setting, unless the restrictions imposed are particularly severe.
    
4. Focus on physical liberty – Article 5 is concerned with physical liberty. Where a person is unable, due to their own condition, to exercise freedom of movement, they are not necessarily being deprived of liberty by the state.
    
5. Purpose - The purpose for which the measures of confinement are imposed may be a relevant consideration in determining whether or not there is a deprivation of liberty.
    
6. The importance of contentment - A person may lack legal capacity under domestic law and yet still have sufficient understanding to express a meaningful view about their living arrangements. If they can genuinely indicate contentment, they may be treated as consenting.

What does this mean in practice?

On one view, this decision may reduce the number of situations that meet the threshold for a deprivation of liberty, and therefore the number of individuals requiring formal safeguards. The ruling will likely result in a significant reduction in the number of situations where an application for a Deprivation of Liberty Safeguard is required. For overstretched local authorities, busy courts and those tirelessly making and chasing up multiple applications, that may appear attractive.

However, from a provider perspective, the reality is less straightforward.

Firstly, the loss of a clear test creates uncertainty. The acid test gave providers a relatively straightforward way of identifying when safeguards were required. The new approach replaces that with a multi-factorial assessment, with no single determinative factor. This inevitably increases the scope for inconsistent decision‑making and challenge.

Providers are now being asked to make nuanced judgments about:

• whether arrangements cross the line from restriction into deprivation;
• how far compliance or lack of objection should carry weight; and
• when wishes and feelings amount to ‘valid consent’, rather than mere acquiescence.

These are not easy questions. They are subjective, open to interpretation, and will often be scrutinised after the event.  The reduction in cases where any restriction of liberty is authorised by the local authority or the Court of Protection, arguably transfers a greater degree of responsibility from those organisations to care providers. In turn this could lead to a greater increase in complaints and challenges brought against care providers. 

Secondly, the judgment places greater emphasis on providers understanding and evidencing the individual’s lived experience. Assessing wishes and feelings is not new - but using them as part of a legal test for Article 5 ‘consent’ raises the stakes considerably. It will demand more detailed recording, more careful analysis, and, in many cases, difficult judgment calls about the weight to give to expressed contentment, shifting even more of the practical responsibility to care providers.

Thirdly, and perhaps most importantly, there is a real risk that fewer individuals will benefit from the formal safeguards that Article 5 is designed to guarantee. By raising the threshold and placing greater emphasis on context, compliance and perceived normality, some of the most vulnerable individuals may fall outside the protective framework altogether.

Until further guidance emerges, and in the absence of any test cases at this stage, providers will need to ensure that decision-making is well‑reasoned, consistent and well‑evidenced. In practice, that means recording clearly how conclusions have been reached, engaging meaningfully with individuals’ wishes and feelings, and avoiding assumptions. Providers should be slow to step back from any well-reasoned existing arrangements until the position becomes clearer. 

For more information and advice on mental capacity issues, please contact Molly Quinney or a member of the regulatory team. 

The team offers bespoke mental capacity training focused on those delivering services in the health and social care sector.