Recent developments reinforce that best-interests decision-making is a rights-based, evidence-driven process, not a professional preference exercise.
BIAs are expected to demonstrate rigour, timeliness, proportionality and clear recording, particularly where liberty, family life or life-sustaining treatment is affected.
June 2026 update
Deprivation of Liberty: Cheshire West no longer stands as a simple acid test
A Reference by the Attorney General for Northern Ireland [2026] UKSC 16, handed down on 2 June 2026, is a major Article 5 development. The Supreme Court held that the minister would not act incompatibly with Article 5 by issuing a revised Northern Ireland code recognising that a person who lacks domestic-law capacity for residence and care arrangements may still express valid consent for Article 5 purposes.
What this means for BIA practice
Do not rely on the Cheshire West formulation alone as a complete answer to whether arrangements amount to a deprivation of liberty.
Look at the person's concrete situation, including the type, duration, effect and manner of implementation of restrictions.
Record wishes, feelings, objection, assent and the quality of any apparent consent with care. Where there is serious doubt, do not assume valid consent.
Treat this as a live practice update. Local policies, supervisory-body guidance and any England and Wales implementation response should be checked before changing operational thresholds.
Expect earlier Court involvement where health decisions significantly affect life or liberty.
Show that welfare, dignity and P's values were actively considered.
DoLS + Article 5
Deprivation of Liberty & human rights
Delays in MCA and DoLS assessments can become human rights risks. The June 2026 Supreme Court judgment also means BIAs should avoid treating continuous supervision and not free to leave as a self-contained answer in every case. See the October 2025 Southampton CC Ombudsman reporting.
Practice implications
Treat delays, backlog and poor recording as rights risks.
Review restrictions actively; do not simply roll them forward due to system pressure.
Record the person's concrete situation, wishes, feelings and any objection or assent.
Recommend conditions that reduce restriction and evidence rejected alternatives.
Deputies + Article 8
Welfare deputies and Article 8
Re XY [2025] EWCOP 55 (T2): deputy authority must be explicit, limited and compatible with Article 8 rights.
Practice implications
Scrutinise claims that "the deputy has authority".
Consider whether the decision requires Court authorisation.
Remain alert to over-restriction of contact, social life or autonomy.
Autonomy
Autonomy, vulnerability and support
Re W [2025] EWCOP 32 (T2): capacity can coexist with vulnerability. Supportive safeguards are different from substituted decision-making.
Practice implications
Do not conflate vulnerability, safeguarding risk and incapacity.
Treat support to exercise capacity as a positive obligation.
