UK Supreme Court overturns Cheshire West and narrows who counts as deprived of liberty

Seven justices of the United Kingdom Supreme Court unanimously overruled their own court on 2 June 2026, discarding the test that has governed the right to liberty of people who lack mental capacity since 2014. The judgment, 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, neutral citation [2026] UKSC 16, was given by Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lord Sales, Lord Stephens, Lady Rose and Lady Simler after a hearing on 20 to 22 October 2025.

The question referred was narrow and the answer was not. Northern Ireland's Minister of Health wanted to issue a revised code of practice under which a person aged 16 or over who lacks decision making capacity could nonetheless give valid consent to confinement by expressing their wishes and feelings. The court held the Minister would not act incompatibly with Article 5 of the European Convention on Human Rights by doing so, and to get there it dismantled P v Cheshire West and Chester Council [2014] UKSC 19.

Cheshire West had supplied what practitioners called the acid test: a person was deprived of liberty if they lacked capacity to consent, were under continuous supervision and control, and were not free to leave. It was deliberately blunt, and it was framed around the proposition that a gilded cage is still a cage. The 2026 court found that test too crude and an over extensive reading of Strasbourg case law. In its place it restored the multifactorial approach drawn from Storck v Germany, under which objective confinement, absence of valid consent and state responsibility must all be weighed together, alongside the type, duration, effects and purpose of the restrictions and the normality of the setting.

The court's press summary lists six respects in which the 2014 majority went wrong. Two matter most. A person's compliance, or absence of objection, is now legally relevant to whether they are objectively confined, at paragraphs 187 to 192. And lack of legal capacity under domestic mental capacity law does not mean a person cannot give valid consent for Article 5 purposes, at paragraph 201, because valid consent is an autonomous Convention concept. The court overruled Cheshire West at paragraph 207 and answered the reference at paragraph 208. Commentary on the Administrative Court Blog on 4 June 2026 quoted the reasoning that where a person can express preferences about their living arrangements and is happy with them, it will ordinarily be difficult to see how they are being coerced.

The numbers behind the system are large. Department of Health and Social Care data reported by Community Care on 30 March 2025 recorded 364,900 deprivation of liberty safeguards applications received by English councils in 2024 to 2025, 353,935 completed, a backlog of 118,850 at year end, an average completion time of 126 days against a statutory limit of 21 days, and only 21.1 per cent completed inside that limit. Community Care's analysis of the judgment on 3 June 2026 noted the court's view that the 2014 approach had been driven by a misplaced policy concern, and that other legal regimes already provide protection.

That is the point on which the sources split sharply. Mencap, Mind and the National Autistic Society issued a joint statement on 2 June 2026 calling the ruling the biggest rollback of disability rights in a generation, arguing it strips independent assessment and advocacy from people in social care, supported living and psychiatric settings, and warning that passivity or sedation could now be read as acceptance. Writing for the UK Constitutional Law Association on 15 June 2026, Craig Wells argued the reasoning fails on its own terms, because a finding that someone cannot consent should not be reconciled with treating their contentment as consent, and that removing the deprivation label removes the trigger for reasoned justification and court review. Legal commentators at the UK Human Rights Blog on 9 June 2026 and at Local Government Lawyer on 2 June 2026 recorded the change more neutrally, as an immediate reset of Court of Protection practice with no transition period.

What is not yet known is larger than what is. Nobody has published how many of the existing authorisations and Court of Protection orders will fall away, or on what timetable councils are meant to review them. The future of the Liberty Protection Safeguards scheme, already long delayed, is unsettled. The government said it would consider the judgment and issue guidance, without saying when. And because the court has reinterpreted Strasbourg doctrine rather than departed from it, the obvious next test is whether the European Court of Human Rights agrees. No application from an affected person has yet been reported.