Cheshire West Overruled - A Change to The Law on Deprivation of Liberty: The 2026 Supreme Court Decision
For over a decade, P v Cheshire West and Chester Council (2014) has been the leading case on deprivation of liberty under Article 5 of the European Convention on Human Rights (ECHR). However, on 2nd June 2026, the UK Supreme Court significantly changed the law in a Reference by the Attorney General for Northern Ireland (2026).
What Does Article 5 ECHR Protect?
Article 5 protects the right to liberty and security. A person should not be deprived of their liberty unless this happens lawfully and according to a legal procedure. Article 5 also provides safeguards, including the right to challenge detention before a court. The key question is whether restrictions placed on an individual are serious enough to amount to a deprivation of liberty.
The Old Law: Cheshire West (2014)
Facts
The case involved three adults with significant learning disabilities who were living in different care arrangements. They were closely supervised by carers and had restrictions placed on their freedom of movement. The Supreme Court had to decide whether the care arrangements amounted to a deprivation of liberty under Article 5 ECHR.
Legal Principle
The Supreme Court created the acid test. A person was generally considered deprived of their liberty if:
They were under continuous supervision and control, and
They were not free to leave.
Lady Hale famously stated that "a gilded cage is still a cage", meaning that care arrangements could still deprive someone of their liberty even if they were comfortable, beneficial and intended to protect the person. The person's happiness with the arrangements was given limited importance. This affected large numbers of people in hospitals and care homes, creating significant administrative pressures and backlogs. However, Cheshire West was also praised for providing a clear and certain test and for protection of vulnerable people.
The New Law: Attorney General for Northern Ireland Reference (2026)
Facts
This case concerned a 36 year old woman with learning disabilities who was living in a care home. She was subject to significant care arrangements, including continuous supervision and control, and she was not able to leave the placement independently. The case was referred to the UK Supreme Court to clarify whether this automatically amounted to a deprivation of liberty under Article 5, particularly where the individual lacked legal mental capacity.
Legal Principle
The Supreme Court unanimously changed the approach and overruled Cheshire West.
The Court held that the acid test should no longer be treated as the sole test for deciding whether a person has been deprived of their liberty. Instead, courts must now use a multifactorial assessment.
What does multifactorial mean?
It means that the court must consider the individual's entire situation rather than simply passing the two part test.
Relevant factors include:
the type of restrictions imposed;
the duration of the restrictions;
the effects of the restrictions on the individual;
the way the restrictions are implemented;
the person's wishes and feelings;
whether the person accepts or objects to the arrangements;
the context and purpose of the care;
how closely the situation resembles traditional detention;
No single factor is automatically decisive. The court must look at the specific circumstances of the individual.
The Important Change to Consent
Under the previous approach, a person who lacked legal mental capacity was generally unable to give valid consent to their care arrangements. The 2026 case clarified that a lack of legal capacity does not automatically mean that valid consent is impossible. A person may be capable of giving valid consent for Article 5 purposes if they are conscious of their environment, have a basic understanding of their situation, can express a view and clearly indicate that they accept or are happy with the arrangements. The person's objections are important, if someone repeatedly expresses a wish to leave or objects to restrictions, this may suggest that they are being deprived of their liberty.
Restrictions Caused by Others vs a Person's Own Condition
The new judgment also emphasises that there must be restriction/s imposed on the person e.g.:
locked doors;
physical control;
constant supervision;
sedating medication;
social isolation;
restrictions on movement.
If a person's inability to leave is caused mainly by their own illness, disability or physical condition, rather than restrictions imposed by others, this is unlikely to amount to a deprivation of liberty.
Summary
Cheshire West (2014) | 2026 Supreme Court Decision |
Focused on the two part acid test. | Uses a multifactorial approach. |
Continuous supervision and control and not free to leave. | Looks at the individual's whole situation. |
Limited importance given to feelings / objection. | Feelings and objections are relevant. |
Lack of capacity generally prevented valid consent. | Lack of capacity does not automatically prevent valid consent. |
Click below to download the FREE TeachLaw comprehension questions and answers
Click Below to purchase TeachLaw revision guides
Comments