Deprivation of Liberty
BRIEFING
The Supreme Court held that Cheshire West went too far. The “acid test” of continuous supervision and control plus not free to leave is no longer sufficient on its own to establish a deprivation of liberty under Article 5.
A person who lacks capacity under domestic mental capacity law may still, in Article 5 terms, give or withhold “valid consent” through wishes and feelings, if they have enough awareness to communicate whether they are happy or unhappy with their living arrangements.
1. What the Court Decided
The reference
The issue was whether Northern Ireland could revise its Code so that some people aged 16+ who lack capacity for care and treatment decisions can still give Article 5 valid consent through wishes and feelings.
The answer
The Court said the Minister would be acting within competence. The proposed Code was not incompatible with Article 5, although it would need revision in light of the judgment.
Cheshire West
The Court declined to follow and overruled Cheshire West. It said the acid test had not been adopted by the European Court of Human Rights and was wrong in principle.
Article 5 consent
Valid consent is an autonomous Article 5 concept. It is not simply the same thing as domestic-law capacity to decide residence and care arrangements.
Wishes and feelings
Current wishes and feelings can matter, but mere silence, passivity or lack of objection is not enough. The evidence must show more than acquiescence.
UK relevance
The judgment arose from Northern Ireland, but the Court noted implications across the UK because England and Wales also link deprivation of liberty under the MCA 2005 to Article 5.
2. The New Analysis: From Acid Test to Concrete Situation
3. Practical Meaning For BIAs, DoLS and MCA Practice
Do not assume
Do not treat lack of capacity as automatic lack of Article 5 consent. Equally, do not treat contentment as automatic consent. Analyse and evidence both carefully.
Evidence the person
Use communication support, repeated visits where needed, family and staff evidence, records of outings or returns, and the person’s own words, behaviour and emotional presentation.
Spot false consent
Check for learned compliance, trauma responses, lack of real alternatives, fear of consequences, institutional pressure, medication effects, distress masked as cooperation, or fluctuating views.
Keep safeguards alive
If Article 5 is not engaged, other safeguards do not vanish: MCA best interests, least restriction, Article 8, advocacy, care planning, safeguarding enquiries, reviews and duties of care remain important.
Record the reasoning
A defensible record should say what was observed, what the person communicated, what restrictions exist, what alternatives were considered, and why the threshold is or is not met.
Use local caution
For England and Wales, follow current statutory processes, local policy and emerging guidance. The judgment changes the Article 5 analysis, but implementation will need careful operational translation.
4. Quick Practice Scenario
Jenny lives in supported living. Staff supervise medication, meals and community access. The door is not locked, but Jenny would not be allowed to move permanently without a best interests process. She says she likes her flat, asks to return after family visits, enjoys local activities, and shows no distress about the arrangements.
Post-judgment question: do not stop at “continuous supervision and not free to leave.” Ask whether Jenny is objectively confined in the Article 5 sense, whether her wishes and feelings show valid consent, and whether the care arrangements are being implemented in a way that is normalising and proportionate rather than coercive.
Sources and Clickable Authorities
UK Supreme Court judgment: A Reference by the Attorney General for Northern Ireland, [2026] UKSC 16
Judgment given 2 June 2026. Key points used: paras 183-186, 200-208 and Annex 1.
UKSC/2025/0042 case page
Includes issue, parties, written arguments, judgment date and neutral citation.