The supreme court has overturned the ruling known as Cheshire West. What does this mean for deprivation of liberty (DoL)?
This landmark judgment reshaped the law on DoL, under article 5 of the European Convention of Human Rights (ECHR).
What are the changes?
The decision was that Cheshire West was wrongly decided and should be overruled.
The supreme court has abolished the “acid test” (whether someone is not free to leave and under continuous supervision) set out in its 2014 Cheshire West ruling, and stated that this went beyond the law of the ECHR.
Irwin Mitchell represented the National Autistic Society and Mencap in the supreme court decision and was a party in the original Cheshire West case.
This latest ruling stated that a “multifactorial approach” should be adopted when considering whether an individual is deprived of their liberty.
The judgment provides limited comment or guidance on what the “multifactorial approach” will look like in practice, except for stating that the “court must focus on their concrete situation and must take account of the whole range of factors in the particular case, including the type, duration, effect and manner of implementation of the measures in question”.
A key part of this approach will be looking at the individual’s own wishes and preferences.
Even if a person has been assessed as lacking capacity to make decisions on their residence and care, if they are happy with their care arrangements and able to express this, it will be considered that they are consenting to their care arrangements. As a result, there will be no deprivation of liberty (DoL).
Lower courts will now be expected to grapple with the question of what a deprivation of liberty is
If an individual is living in their own home in accordance with their wishes and feelings, it is less likely they will be considered to be deprived of their liberty. For there to be a deprivation of liberty in this setting, the restrictions in place at home must be severe or extensive, such as restraint, medication or seclusion.
If an individual is considered to be in a minimally conscious state, they are likely to not be deprived of their liberty, as the court will consider they have no liberty to be deprived of. In other words, as they cannot physically leave of their own accord, they are not being deprived of their liberty.
Implications
There is no right of appeal to the ECHR. Instead, the lower courts will now be expected to grapple with the question of what a deprivation of liberty is. It is expected that there will be various first instance judgments in the coming months.
The implications can be neatly summarised as follows:
- Fewer safeguards in place for vulnerable individuals
- Reduced court oversight on care arrangements
- A potential increase in judicial review matters
- Where it is unclear if the arrangements amount to a DoL – the court of protection (CoP) can determine the question.
It is likely that significant numbers of individuals will no longer be considered to be deprived of their liberty. As such, they will lose independent oversight from best interest assessors (qualified health or social care professionals who assess adults lacking the mental capacity to consent to their care) and also access to statutory advocates, such as relevant person’s representatives.
These roles provide vital independent oversight and ensure that concerns about care arrangements can be raised effectively.
Theoretically, there should now be a greater use of Care Act advocates to help facilitate individuals’ participation in their care planning, if no other suitable person is able to assist. However, this form of advocacy is more limited in scope and may not provide an equivalent level of protection.
Community housing
There us likely to be a significant reduction in the amount of streamlined COPDOL11 (Re X) applications – the court of protection’s simplified process for authorising uncontentious DoL arrangements for individuals lacking mental capacity living in community settings.
Young people who live in shared housing after transition to adulthood are far less likely to be considered to be experiencing a deprivation of liberty under the new ruling.
There will be a lack of objective court scrutiny over whether such care arrangements for these individuals are in their best interests.
Human rights protections
The supreme court stated that the other protections under the ECHR remain in place. These include as article 2 – right to life, article 3 – prohibition against torture and inhumane treatment and article 8 – freedom of private and family life, home and correspondence.
However, given the lack of legal aid to make claims, the shortage of advocates to bring claims on behalf of people and the high threshold that needs to be met for a successful claim, it is unclear how much practical use these rights will be for those who may be subject to abuse and neglect who have no one to voice their experience.
Way forward
Given the change in the legal test and the lack of clarity of its application in the real world, the CoP will still be making best interests decisions on behalf of people who lack capacity where required.
The resulting uncertainty will inevitably increase the risk of inconsistent decision-making and fall to the lower courts to resolve
In addition to its usual day-to-day work, it is anticipated that CoP will now have to hear arguments on and determine:
- Whether there is a deprivation of liberty
- Whether someone is able to provide valid consent to the arrangements
- If someone does not object to their care arrangements but their loved ones object, whether the arrangements amounts to a deprivation of liberty
- If there is not a deprivation of liberty, whether the care arrangements are the least restrictive way of meeting a person’s needs.
- Means-tested legal aid does remain in place, so legal representation is available, subject to financial eligibility.
Expect inconsistent decisions
The narrowing of what constitutes a deprivation of liberty is likely to leave many vulnerable individuals without the protections that previously applied to their care arrangements.
The resulting uncertainty will inevitably increase the risk of inconsistent decision-making and fall to the lower courts to resolve.
It is imperative that practitioners take a robust and holistic approach to assessing whether a person is deprived of their liberty, including assessing and understanding their wishes and feelings on their care arrangements, and that any assessments are tailored to an individual’s specific circumstances.
Families with concerns about vital care packages breaking down owing to a lack of DoL safeguards following the judgment should seek specialist legal advice.
Rebecca Chapman is a public law and human rights lawyer at Irwin Mitchell
Cases
Supreme Court. 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. Case ID: UKSC/2025/0042
P v Cheshire West and Chester Council and another [2014] UKSC 19. Case ID: UKSC/2012/0068
