Supreme Court overturns Cheshire West: What this landmark deprivation of liberty ruling means for disabled people

The new case departs from the approach established in the Court’s 2014 decision in P v Cheshire West and Chester Council.

In that case, the court introduced what became known as the “acid test” for determining whether someone was deprived of their liberty under Article 5 of the European Convention on Human Rights.

The so-called “acid test” meant that someone could be considered deprived of their liberty if they were under continuous supervision and control and could not leave.

But the defining feature of the 2014 ruling was that it did not matter whether the person appeared content with their care arrangements or whether the placement was beneficial. If the acid test was met and the person lacked capacity to consent, legal safeguards were required.

The decision dramatically expanded the number of people considered deprived of their liberty, leading to a sharp increase in applications under the Deprivation of Liberty Safeguards (DoLS) system.

Discover more about mental capacity and DoLS for care organisations >

The case arose after Northern Ireland’s Health Minister sought to revise guidance governing deprivation of liberty.

The proposed changes would allow some people aged 16 and over who lack decision-making capacity to nevertheless give valid consent to their care arrangements through the expression of their wishes and feelings.

The Attorney General for Northern Ireland referred the issue to the Supreme Court to determine whether such changes would be compatible with Article 5.

The key legal question was whether a person who lacks mental capacity to make decisions about their care can still provide valid consent, for human rights purposes, by expressing contentment in some manner with their living arrangements.

In a unanimous judgment, a seven-justice panel concluded that the majority decision in Cheshire West was wrong and should be overruled.

The court held that the European Court of Human Rights has never adopted the acid test used in Cheshire West. Instead, Strasbourg case law requires a “multifactorial” assessment that considers the person’s overall situation.

Similarly, the Supreme Court’s new stance requires a “multifactorial” assessment, whereby judges and care providers must now weigh a range of factors:

• the nature and extent of restrictions placed upon them;
• the setting in which they live;
• the purpose of the arrangements;
• their individual circumstances; and
• whether they express wishes or feelings indicating acceptance or objection.

But the real surprise was the court’s finding that lacking mental capacity does not automatically mean someone cannot give consent under Article 5.

The justices held that some individuals may have sufficient awareness of their living arrangements to communicate whether they are happy or unhappy with them, even though they lack legal capacity to make decisions about their care.

The immediate effect is that fewer people are likely to be regarded as deprived of their liberty solely because they are subject to continuous supervision and control and are not free to leave. As a result, some people who would previously have required formal deprivation of liberty authorisation may no longer fall within Article 5 protections.

Supporters of the judgment argue that it brings domestic law back into line with European human rights law and avoids treating every restrictive care arrangement as a deprivation of liberty. However, disability rights organisations have expressed deep concern about the practical consequences, with the National Autistic Society, Mencap and Mind described the ruling as “the biggest rollback of disability rights in a generation”, warning that fewer people may benefit from independent oversight, advocacy and access to legal remedies.

The judgment arrives at a time of severe backlogs in the existing DoLS system. NHS Digital data reveals that out of nearly 365,000 applications made during 2024-25, nearly 119,000 remained outstanding at year end. Worse still, only about one in five was actually processed within the legally mandated 21-day window.

The government’s longstanding plan to replace DoLS with Liberty Protection Safeguards (LPS) has yet to be implemented. The Supreme Court’s ruling is therefore likely to significantly influence future discussions about how legal safeguards for vulnerable adults should operate.

For now, health and social care providers are left with the massive task of auditing their current caseloads to see who still falls under the protection of the law—and who now falls short.