05 Jun 2026

15 minutes read

The door of the “gilded cage” has been flung open: A fundamental change to the law regarding deprivation of liberty

It’s hard to believe that the case of Bournewood (HL v United Kingdom) dates back to 2004 and here we are, 22 years later, still grappling with the topic of deprivation of liberty.

Summary

On 2 June 2026, the Supreme Court handed down its 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 [2026] UKSC 16.

With immediate effect, the landmark judgment of P v Cheshire West and Chester Council [2014] UKSC 19 (Cheshire West) has been overruled. Rather than relying on the previously established “acid test” to assess whether a person is deprived of their liberty, the Supreme Court decided that a multifactorial approach must be adopted. A range of factors must be considered, including whether the individual has given “valid consent”.

The decision has significantly narrowed the definition of deprivation of liberty (DoL), which will lead to a drastic change in the processes for Deprivation of Liberty Safeguards (DoLS) and Court of Protection authorisations.

For the purposes of deprivation of liberty under Article 5 of the European Convention on Human Rights (ECHR), a person can provide valid consent, despite lacking capacity in relation to their care and residence arrangements. Valid consent can be provided if the individual has a basic understanding of their situation and can in some way manifest their wishes and feelings.

The decision will have a substantial impact on how health and care organisations approach deprivation of liberty going forwards. It will directly affect a number of settings including hospitals, care homes, children’s homes, supported living arrangements and even individuals’ own private homes.

This article considers the case brought before the Supreme Court, the decision made, changes to the pre-existing legal landscape, practical implications for practitioners and changes that we can expect in the future.

Background

The application made by the Attorney General for Northern Ireland (AGNI) concerned what constitutes a deprivation of liberty under Article 5(1) of the ECHR.

The question before the Court was whether the AGNI had the power to revise the existing DoLS Code of Practice in Northern Ireland (the Code). The updates to the Code proposed to narrow the view of a deprivation of liberty to enable individuals over the age of 16 (who lacked capacity to make decisions regarding their care and treatment) to give valid consent to their confinement through an expression of their wishes and feelings. The AGNI asked the Supreme Court whether the proposed revisions were compatible with Article 5 of the ECHR and, therefore, within the Minister’s powers.

The Supreme Court was therefore invited to depart from the decision in Cheshire West and to narrow the interpretation of what constitutes a deprivation of liberty. This would mark a departure from the pre-established “acid test”, which stipulated that an individual is subject to a deprivation of liberty if they are subject to continuous supervision and control and are not free to leave.

The decision

The Supreme Court decided that the AGNI would be acting in accordance with Article 5 of the ECHR in issuing the revised Code of Practice. In doing so it overruled the decision in Cheshire West.

The Court noted current statistics. In 2023/24 there were 332,455 referrals for a DoLS authorisation in England, and by that point there was a backlog of 123,790 cases. The Court noted that these figures didn’t capture those not covered by the DoLS scheme, including supported living, shared lives and private and domestic settings. It was clear that, with such backlogs, hundreds of thousands of people were being deprived of their liberty unlawfully.

The Court also noted practical consequences such as assessments being intrusive and distressing for individuals and their families and limited public funds and staff.

A summary of the Supreme Court’s conclusions are provided at paragraph 53 of the judgment.

To recap:

A multifactorial approach must be adopted to assess whether someone has been deprived of their liberty under Article 5 of the ECHR. No single factor of this assessment is determinative, but specific factors to consider include the “type, duration, effects and manner of the implementation of the measure in question”. Importantly, the presence or absence of objection from the individual is a key factor.
Both objective and subjective elements must be satisfied for an individual to be deprived of their liberty:
- Objective element - confinement in a restricted space for a significant period. Such assessments of confinement include consideration of the effect of the restrictions, the individuals’ compliance and lack of objection and the “relative normality” of the placement.
- Subjective element – that the individual has not validly consented to that confinement. Valid consent was described as a “powerful factor”.
- Where there is overlap between the objective and subjective elements, the objective element can take account of specific context and circumstances.
A practical and realistic approach should be taken as to the process of assessing whether there has been a deprivation of liberty. Where there is serious doubt, no inference of valid consent should be drawn.

The concept of valid consent

Previously, if an individual lacked capacity under the Mental Capacity Act 2005, they necessarily lacked the ability to consent to their deprivation of liberty. This ruling has now changed this position in that “valid consent” is an autonomous concept within the meaning of Article 5 of the ECHR (not to be equated with the concept of consent for the purpose of legal capacity in domestic law).

While the concept of “valid consent” was not fully delineated by the Court, paragraphs 135 and 151 of the judgment provide an indication in this area:

“Where an individual lacks full mental awareness (in a factual sense) in relation to their circumstances, so that they cannot be regarded as someone with full ability to decide how they wish to be treated for all purposes, they may nonetheless be sufficiently aware of the circumstances in which they are maintained in confinement as to be able to register whether they are happy or unhappy with those circumstances and to enter protests against their treatment if they are unhappy with them.” [135]
“They may have impaired understanding of many things and may lack capacity in a full legal sense, but they may nevertheless have a fundamental understanding of whether they are broadly happy or unhappy about something so basic, and their understanding of and choices regarding that should be accorded respect.” [135]
“An individual without legal capacity, but who is conscious of their environment and has a basic understanding of their living circumstances in a secure care environment, so that they can in some suitable way express their view about their situation, who manifests their acceptance of that situation, should have their opinion respected when an assessment is made whether they are suffering a deprivation of liberty under article 5.” [151]

Departure from Cheshire West

The Supreme Court unanimously overruled the decision in Cheshire West and concluded that the phrase “deprivation of liberty” had been interpreted too expansively and in error.

It was concluded that Baroness Hale’s so-called “acid test”, which has been used by practitioners to assess whether someone has been deprived of their liberty since 2014, was incorrect in principle and is insufficient for determining whether someone is being deprived of their liberty under Article 5 of the ECHR. Therefore, the legal principles within Cheshire West are no longer valid.

By way of summary, the Supreme Court decided that Cheshire West was incorrect for the following six reasons:

Range of factors

The acid test is insufficient for establishing a deprivation of liberty as no single factor is determinative and a multifactorial approach must be used. The difference between deprivation of liberty and restriction of liberty is one of degree or intensity, not one of nature or substance. It’s possible to conclude that a DoL results from the manner of implementation of the measure in question. It’s possible that cumulatively and in combination the elements comprising the implementation of the measure will amount to a DoL.

Context

A person’s compliance or lack of objection is legally relevant to the question of objective confinement. While mere compliance or acquiescence may carry little weight, particularly if it’s accompanied by the administration of sedative medication, the individuals’ wishes and feelings, including whether they are “happy” with current arrangements, are an important factor. It’s relevant to consider the effects of the living arrangements on them. The Court did recognise that there may be considerable evidential difficulties in ascertaining whether a person who is severely autistic or who has other profound cognitive disabilities is content with and not objecting to their living arrangements. They acknowledged that inevitably there will be a wide spectrum of cases.

Setting

Whether a placement amounts to a DoL is fact sensitive and a matter of degree. Article 5 is concerned with physical liberty and not the mere restrictions on the liberty of movement. The acid test took no account of the types of settings and effect of those settings on the relevant individuals. The normality of the circumstances in which an individual is cared for is a relevant factor. They contrasted a high security psychiatric hospital with a person supported to live as independently as possible in their own accommodation or in their family home. The parties hadn’t identified any decision of the European Court to date which decided that an individual living in their own home was deprived of their liberty. However, the Court acknowledged that this did not mean that an individual living in their own home could never be subject to a DoL. However, they anticipated a combination of restraint, medication and seclusion would be needed.

Innate limitations

There is a need for coercion or some externally imposed restrictions that prevent an individual from exercising their right to physical liberty. The Supreme Court decided that the acid test took no account of the innate limitations to which an individual may be subject by reason of their own physical or mental condition. In short, individuals who are so profoundly disabled that they cannot conceptualise leaving a setting, let alone physically achieve it, are not being prevented by a third party from doing something and are not being deprived of anything. The Supreme Court were clear that this doesn’t amount to discrimination against those who are disabled.

Purpose

The decision in Cheshire West to discount the potential relevance of the purpose for which measures of confinement were imposed was incorrect.

Consent

Lack of legal capacity ought not to have been equated with lack of valid consent, as valid consent is an autonomous concept. If a person has a basic level of awareness and conscious of their living arrangements that is sufficient to enable them to know and communicate whether they are happy or unhappy with them, they may be treated as able to give or withhold valid consent to confinement by expression of their wishes and feelings.

The door to the gilded cage opened

Interestingly, applying this reasoning to the cases of MIG, MEG and P, who had been the focus of the Cheshire West case, the court’s view was that MIG and MEG were not deprived of their liberty.

MIG: Her living arrangements were as close to normal as possible and such minimal element of confinement as existed was for her benefit and protection. Her situation was very far removed from the paradigm case of confinement in a prison cell.

MEG: She was happily living in an NHS facility showing no wish to leave or go out on her own. She did receive tranquilising medication but that was not administered with a view to disabling her from forming a view about her circumstances. There were occasional outbursts from time to time. The living arrangements were as normal as possible in the circumstances and the continuous supervision and control to which she was subject were directed to meeting her care needs rather than to making her a prisoner. She was physically restrained on occasion but for her own protection or the protection of others. Again, she was far removed from confinement in a prison cell.

P: The Court wanted to reserve their opinion here but thought many features indicated there was not a DoL.

Looking to the future

This decision marks a significant change in the law and has immediate implications for those working in the health and care sector across the UK.

The decision has immediate effect, meaning no grace period is available to consider its impact. Therefore, we’re all expected to apply the new law to existing cases now and going forward.

In a report produced by the Law Commission in 2017, it was estimated that the cost of full compliance with the DoLS regime following Cheshire West was £2.2bn per year which represented approximately 2% of the entire budget of NHS England. In the long term, we anticipate that the decision will lead to a significant reduction in the number of individuals being subject to a deprivation of liberty which is hoped to ease the burden on public resources.

There will be implications for all Court of Protection cases, particularly those involving Re X and Community DoLs applications where an application is being made for a community deprivation and the individual doesn’t appear to be objecting, or where there’s doubt as to whether the individual is objecting.

Further guidance can be expected from the Department of Health and Social Care, and the Ministry of Justice are expected to implement changes to the current DoLS forms and consult on a revised Code of Practice in the near future. However, at present, practitioners must rely on the guidance available within the judgment.

Practical implications

In light of the changes, it would be prudent for public bodies to take steps and consider the following:

Updating all resources available for those conducting assessments to assist them in determining whether a deprivation of liberty exists, including providing updated policies and training materials.
Conducting a full review of all current cases involving a deprivation of liberty, to individually assess whether the deprivation remains in place in each case, pursuant to the new rules. Should public bodies be unsure or disagree, they should seek oversight from the Court of Protection. This should involve separately reviewing COPDOL11 cases, section 16 and section 21A cases either issued or being worked up.
When conducting assessments to determine whether a deprivation of liberty exists, practitioners must be advised to undertake a multifactorial approach and carefully consider the individual’s whole situation, including their wishes and feelings, the nature of restrictions, how arrangements are implemented, whether there is coercion or distress, whether they have any objections to their current arrangements, and how decisions are reviewed and recorded.
Being aware of any future updates, including new case law from the Court of Protection and guidance from Department of Health and Social Care (DHSC) regarding changes to DoLS forms and a revised Code of Practice.

In the immediate period following the decision, whilst clarificatory guidance is awaited, it’s imperative that public bodies clearly document all decision-making processes in this area and set out detailed written reasons for each individual decision, in order to manage risk.

For those managing care homes and supported living placements, this decision will require consideration as to whether Standard Authorisations or applications to Court will now be required. Trying to discern whether someone is “happy” with their residence and restrictions may be particularly challenging and it is inevitable that more case law will follow to give guidance on this. In the meantime, those with responsibility for managing these placements need to ensure that residents are properly assessed and these reviews are carefully documented.

What does the future hold?

This judgment is inevitably set to have a huge impact on the number of individuals who are deemed to be “deprived of liberty” and so come within the legal remit of either of the DoLS Framework or the Court of Protection. Although no judicial or Government guidance is available yet, it seems inevitable that the number of COPDOL11 applications will significantly reduce as these are always circumstances which by definition the patient is thought to be content with the arrangements.

It also seems likely that many “straightforward” community DoLS applications for patients living in the community, for example, following discharge from a mental health setting into supported living or similar are probably going to be unnecessary. Although many of these cases also raise other issues which are not covered by this decision such as contact arrangements or internet access.

Despite the clear direction of travel indicated by the Court there are many organisations which are clearly very concerned about this and see it as removing important safeguards which protected a highly vulnerable section of society. As such, there may be many cases where concerns are raised as to whether the individual can really be said to have given “valid consent” in the sense identified by the Court, and so in those cases a Court decision will inevitably be required.

Existing clients

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