Blog written by John Davies, Senior Associate, and Abbie Mattocks, Solicitor, in our Private Wealth Disputes team.
The UK Supreme Court has handed down a significant judgment which will reshape how deprivation of liberty is assessed for people who lack capacity to make decisions about their care and living arrangements.
The decision has already prompted discussion between lawyers, care providers, local authorities and disability rights organisations, with many predicting substantial changes to the way deprivation of liberty safeguards are applied in practice.
What is a deprivation of liberty?
The law contains important safeguards to protect people who lack capacity and are subject to significant restrictions on their freedom as part of their care arrangements.
Since the Supreme Court’s decision in P v Cheshire West and Chester Council [2014] UKSC 19 (“Cheshire West”), a person was generally considered to be deprived of their liberty if they were:
- under continuous supervision and control; and
- not free to leave.
This became known as the “acid test”.
Importantly, the person’s apparent happiness or lack of objection to the arrangements was not considered decisive. As Lady Hale famously observed in Cheshire West, “a gilded cage is still a cage”.
The effect of that decision was that large numbers of people living in care homes, supported living placements, hospitals and other care settings became entitled to additional legal safeguards and oversight, which they had the right to challenge.
What has the Supreme Court decided?
In a recent reference (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] UKSC16), the Supreme Court was asked to consider when care and living arrangements for a person who lacks capacity to make decisions about where they live and the care they receive amount to a “deprivation of liberty” under Article 5 of the European Convention on Human Rights.
The Supreme Court concluded that the assessment is not limited to the “acid test” alone. Instead, a wider range of factors may be relevant when determining whether a person is deprived of their liberty.
These factors may include:
- the person’s wishes and feelings regarding their living arrangements;
- whether they appear to accept or consent to those arrangements;
- the nature and purpose of the restrictions in place; and
- the overall circumstances in which the care is being provided.
As a result, the assessment is likely to become more fact-sensitive and dependent upon the individual circumstances of each case.
Why is the judgment controversial?
The decision has attracted criticism from several disability rights organisations, including Mind, Mencap and the National Autistic Society, which intervened in the proceedings. These organisations argue that the judgment risks weakening important protections for people who may be unable to challenge restrictive care arrangements themselves. They have expressed concern that, if fewer individuals are found to be deprived of their liberty, fewer people will benefit from safeguards such as independent advocacy, access to the Court of Protection and the legal aid provisions that are often available in deprivation of liberty cases. The charities also warn that reducing access to these safeguards may make it more difficult for concerns about care arrangements, neglect or potential abuse to be identified and challenged.
More broadly, critics have raised concerns that:
- the new approach may create uncertainty whilst professionals, local authorities and courts seek to apply the revised test;
- greater emphasis on a person’s apparent acceptance of their arrangements may be problematic where wishes and feelings fluctuate or differ depending on who is asking the questions;
- the move away from the “acid test” could lead to inconsistent decision-making between different professionals and organisations; and
- the practical impact of the judgment may not become clear until the courts begin applying the new approach in individual cases.
Others, however, argue that the previous approach captured too many care arrangements within the deprivation of liberty framework and that a more nuanced assessment better reflects the individual’s own experience and wishes.
What happens next?
The practical implications of the judgment are still emerging. However, this decision takes effect immediately. It represents the most significant development in deprivation of liberty law since Cheshire West itself.
Local authorities, Integrated Care Boards, care providers and legal practitioners will now need to consider how the Supreme Court’s guidance should be applied in day-to-day assessments.
Further guidance may be required before the full impact of the decision becomes clear.
In the short term, it is likely that there will be a period of uncertainty as professionals and organisations adapt to the new legal framework.
For those who lack capacity and their families, the central question will be whether the new framework can continue to provide meaningful protection against unnecessary or excessive restrictions whilst respecting individual autonomy and expressed wishes. The answer to that question is likely to shape mental capacity law for years to come.
What should individuals and families do?
If you are currently subject to a Deprivation of Liberty Safeguards authorisation, or if a family member or loved one is living in a care setting where restrictions are in place, or where there are concerns about parts of their care package, this judgment may understandably cause concern.
At present, existing authorisations and safeguards remain important protections. However, the way future assessments are conducted may change as the implications of the judgment are worked through in practice.
If you are unsure how the decision may affect you or someone you care about, it is sensible to seek advice from a legal professional. Early guidance can help individuals and families understand their rights, challenge decisions where appropriate, and ensure that care arrangements remain lawful and in the person’s best interests.
