Today saw a monumental volte face for those impacted by the Mental Capacity Act.
In a landmark judgment, the Supreme Court unanimously overruled its 2014 majority decision in Cheshire West, fundamentally reshaping the definition of deprivation of liberty.
The Court decided that Cheshire West was wrongly decided and that the decision in Cheshire West adopted an unduly broad approach as to what constituted a deprivation of liberty.
The 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] UKSC 16 will have significant implications for how health and care organisations approach deprivation of liberty going forwards. Its impact is likely to be felt across all settings, including hospitals, care homes, children’s homes, hostels, supported living arrangements and even individuals’ own private homes.
This is an 81-page judgment so lots for us all still to digest – expect more from us! For now, here’s what readers need to know.
The Supreme Court concluded that Cheshire West was wrong to adopt the “acid test” and instead should have applied a multifactorial approach when determining whether an individual is deprived of their liberty.
An individual who lacks capacity can still “consent” to arrangements if they appear to be happy with them. This is referred to as “valid consent”.
The Court summarised its reasoning at paragraphs 52 to 55 of the judgment. In doing so, it decided that:
- The acid test is not sufficient on its own to establish a deprivation of liberty. While it may be relevant as part of a broader multifactorial assessment, the court must look at the individual’s situation and consider other factors such as the type, duration, effects and manner of implementation of the measures in question.
- Cheshire West was wrong to conclude that a “person’s compliance or lack of objection” is never legally relevant to the question of objective confinement – it can be.
- The normality of the type of setting where an individual receives care and treatment – whether they are living in their own home or in the community is a relevant factor in assessing whether there has been a deprivation of liberty.
- The acid test overlooks innate limitations by reason of an individual’s own physical or medical condition. As a result, it fails to reflect the need for coercion or some externally imposed restrictions on an individual that prevent them from exercising their fundamental right to physical liberty.
- It was wrong to discount the potential relevance for the purpose for which measures of confinement were imposed.
- "Valid consent" is an autonomous concept and not to be equated with legal capacity under the Mental Capacity Act 2005.
Implications for commissioners, providers of healthcare services and care homes
The Supreme Court’s ruling applies from today.
This means the Cheshire West approach is no longer the correct legal framework. New guidance is expected to follow from DHSC, but timeframes are not yet known.
The decision will have significant implications for all Court of Protection cases, particularly those where an application is being made for a community deprivation and P does not appear to be objecting or where there is doubt as to whether P is objecting.
It also rules out any deprivation of liberty where someone is unable to express an opinion at all, for example, someone in a coma.
Our experienced and friendly team of mental capacity and Court of Protection specialists would be happy to discuss any of your cases in light of today’s decision.
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