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The End of “Cheshire West”? Deprivation of Liberty, Consent and Capacity in the Supreme Court

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24/10/2025

The end of Cheshire West???

The Supreme Court has, this week, been hearing argument in a case brought by the Attorney General for Northern Ireland (“the Attorney General”) who seeks to amend the (Northern Ireland) Deprivation of Liberty Safeguards Code of Practice to reflect that an adult may give valid consent to living arrangements, even if they lack capacity within the meaning of Mental Capacity (Northern Ireland) Act 2016, such that there would be no deprivation of liberty within the meaning of Article 5 ECHR.

Of course, if the application succeeds, the there will be wide ramifications in England and Wales, both as to whether Article 5 is engaged at all, and if it is engaged, whether someone who is happy, content and expressing wishes and feelings that they wish to live in a particular home or placement is actually ‘confined.’

The Attorney General’s principle argument is that a person, whether or not they have capacity to decide about their residence, and care and support, may still nevertheless give ‘valid consent’ to their confinement.  If there is ‘valid consent,’ then the three ingredients necessary to engage Article 5 ECHR (from the European Court’s decision in Storck) would not be met, and Article 5 would not be engaged at all.

The second key argument, developed by the Secretary of State for Health and Social Care, intervening in the case, is that the acid test promulgated in Cheshire West is only part of the picture when determining whether someone is confined.  There are many other factors, including, the wishes and feelings of the person.  If that person is positively expressing the view they are happy, content, and wish to remain in the home or placement, then that will weigh heavily against a conclusion that the person is actually confined.

Again, if there is no confinement, then the three ingredients necessary to engage Article 5 ECHR (from the European Court’s decision in Storck) would not be met, and Article 5 would not be engaged at all.

Capacity vs. Consent

For my part, I have generally equated ‘valid consent’ to mean ‘having capacity’ to make the decision at hand.  Although there are exceptions, most obviously, disabling circumstances which prevent a person from giving consent, caused otherwise than a mental disorder – the type of circumstances which engage the residual jurisdiction inherent to the High Court as explained by Munby J in Re SA (Vulnerable Adult with capacity: Marriage) [2005] EWHC 2942 (Fam).

Indeed, I myself have deployed arguments to the court to seek protective orders where adults who have mental capacity to make their own decisions, nevertheless, are unable to give valid consent to arrangements for their residence, and/or care and support, which otherwise deprive them of their liberty (the high water mark of which was Wakefield Metropolitan District Council & Anor v DN & Anor [2019] EWHC 2306 where Cobb J (as he then was) rejected such arguments).

The Official Solicitor (of England and Wales) asserts that the assessment of capacity to make decisions regarding in respect of residence and care and support expressly includes whether the adult is able to consent to their confinement, having regard to the restrictions set out in their care plan (§40).

Whereas the Secretary of State explains that there will be cases where an adult does lack capacity to make their own decisions about where to live, and as to their care and support, but is still able to offer ‘valid consent.’  He explains that decisions for adults who do not have capacity to decide where to live would still require the familiar approach of best interests, and determinations by the court where there is a dispute.  Only then,

“[h]aving made those decisions, decision makers would then have to go on to consider whether the individual is deprived of liberty as a result. It is only at the stage of considering deprivation of liberty that the ECtHR concept of “valid consent” would play any role. If then individual is confined, the decision maker would then have to consider whether the individual has provided “de facto” consent to the arrangements, notwithstanding that he is (by definition) unable under the MCA to make the decision about residence and care for himself. By this stage, the decision maker must already have considered the person’s wishes and feelings, so far as these are ascertainable, and so would be fully aware of these.”

In that respect, therefore, the Secretary of State highlights clear safeguards for an adult, and makes clear that, if the Supreme Court accedes to this distinction, “…guidance would have to be given to decision makers as to what is required to establish that the person is “de facto” able to understand his situation (even though he is unable to make a decision on residence/care under the terms of the MCA). Further, guidance would need to be given to ensure that a person’s wishes and feelings are genuinely their own wishes and feelings (and not obtained via coercion or undue influence)….”

The Attorney General’s case begins by focusing on, what must be obiter comments from Cheshire West of the ability of an (incapacitated) person to express wishes and preferences, and the relevance of such ability, noting Lord Neuberger observation of “rare” cases in which “absence of objection can be said to amount to consent” (§6]).

All sides argue that the issue has not been dealt with in any authoritative way by the European Court.

The Attorney General develops her argument, and draws attention to the significant impact DoLS, or applications to the Court of Protection to seek authorisation for deprivations of liberty, upon the person at the centre of the case, by most obviously the numerous assessments, the frequent and recurring discussions with well-meaning professionals and solicitors, and even judges, which might be avoided if an adult who was expressing satisfaction and acceptance of their living arrangements were interpreted as ‘valid consent.’  In her written case, the Attorney General says:-

“Viewed through this lens, the approach of the majority in Cheshire West appears to be the direct inverse of that required by the CRPD. By holding the individuals in question legally incapable of consenting to the arrangements for them, irrespective of their views, it might be said that the majority were failing to respect their will and preferences.”

My view is that there is strength in that argument.  I am always concerned the number of assessments that adults in cases of this type must endure.  I always consider, in s.21A challenges, the appropriateness of extended standard authorisations to the full 12 months, for this reason alone.  However, there are serious risks in broadening the concept of ‘valid consent’ to allow those who lack capacity to make their own decisions as to where they live, and their care and support arrangements, most obviously, the ‘Bournewood Gap.’

The Attorney General also points out that, by its very nature, the administrative burdens of DoLS and applications to the court interfere with the adult’s Article 8 rights by requiring confidential documents to be produced and shared with others, including administrators, lawyers, judges and family members. 

Cheshire West: The Acid Test

There are clever arguments, articulated with particular clarity in the Secretary of State’s written case to explain how “…a lack of objection (or, to put it the other way round) a positive expression of wishes and feelings showing that the individual is happy with the arrangements…” may mean that there is not an objective confinement.  This is a direct challenge to the ratio of Cheshire West, and an invitation to the Supreme Court to overrule the ‘acid test’ of continuous supervision and control, and not being free to leave.  

There is common ground in all of the arguments before the court that the European Court has never adopted an acid test, and has always applied a multi-factorial test, taking account of all relevant circumstances.

Further, one of the factors that the ECtHR always considers in determining whether there is a confinement is the “effects and manner of implementation” of the measure in question, and if the adult is happy and content, then the effect of the implementation of the arrangements upon them is likely to be minimal – and if that is the case, then it is argued that such a factor weighs heavily against the concrete situation for the adult amounting to confinement.  The Secretary of State submits that it “…would be absurd to ignore the benevolent effect of the arrangements (as opposed to the benevolent purpose, which can only be considered at the stage of justification…).”

The Secretary of State also shines a light on the approach of the courts to ‘continuous supervision and control,’ arguing that

““continuous control” is properly understood as making all decisions of importance in the person’s life, including the place they live, the activities the person undertakes, who they are in contact with, and their care and treatment. Yet if decisions are being made in order to facilitate the incapacitated person’s wishes and feelings, this is not “control”. There is a clear distinction between (a) supporting the incapacitated person to live their life in accordance with that person’s views and preferences; and (b) controlling what the individual does at any given time. In short, if the individual is supported to act consistently with their wishes and feelings, through the provision of support enabling them to live as they wish to live and/or to participate in activities that they wish to participate in, those measures are not controlling the individual.”

The Attorney General (and the Secretary of State for Health and Social Care) both pray in aid the impugned decision of Mostyn J in Rochdale MBC v KW [2014] EWCOP 44 where it was held that KW was not deprived of her liberty because, in circumstances where she was physically unable to leave the accommodation, “[s]he is not in any realistic way being constrained from exercising the freedom to leave, in the required sense, for the essential reason that she does not have the physical or mental ability to exercise that freedom” (§25).

The Secretary of State illuminates the point by reference to Professor Eldergill:

“Wishing or deciding to leave fall into the category of things which the person is now incapable of doing and one cannot properly speak of being prevented by others from doing something which one is incapable of doing. Nor can anyone possibly restrain a person from doing something which they do not have the ability to do at present. Mere inability is not lack of freedom.”

Reliance is also placed on the decision of Lieven J. in Re SM [2024] EWHC 493 who held that SM was not deprived of her liberty, since the case of her being unable to leave her accommodation “…is her profound disabilities, not any action of the State, whether by restraining her or by failing to meet the State’s positive obligations to enable her to leave.”

At its core, the argument here seeks to reverse the approach of comparing the adult’s circumstances with another person, of similar age, who is unaffected by disability. 

Finally, in terms of advocating for the ‘acid test’ to be set aside, the Secretary of State draws attention to the type of setting, arguing with force that “…if an individual is living in their own home, in accordance with their wishes and feelings, it makes it considerably less likely that the individual is being confined.  The restrictions imposed would need to be far more extensive in order to amount to confinement: requiring, for example, restraint, medication, seclusion, social isolation, no contact with the outside world.”

It is fair to say, in my view, that cases where an adult is living in their own home is considered to be deprived of their liberty – for example, an adult living at home with parents, but subject to a care plan developed by a local authority which provides for constant supervision, have often been difficult to reconcile with the underlying purpose of the legislation. 

All of this leads the Secretary of State to submit that the ‘acid test’ must be satisfied for there to be a confinement, but even if the acid test is satisfied, a survey of wider factors may lead to a conclusion that there is not, in fact, a deprivation of liberty.  In theory, the argument is attractive, but in practice, a wide, subjective, evaluative judgment would be required – alongwith it, a wide margin of appreciation of the decision maker, and in my view, a very clear risk of adults being deprived of their liberty through inadequate safeguards.

Liberty Safeguards

Against the backdrop of the eloquent legal argument in the Supreme Court, the government has also announced that the Liberty Protection Safeguards will now be implemented, having been on the statue books now for 7 years.  It is reported that consultation on introducing new system, designed to streamline process of authorising deprivations of liberty in health and care settings, will begin next year.

The Liberty Protection Safeguards would replace (and effectively extend) the Deprivation of Liberty Safeguards with an administrative procedure for authorising the deprivation of liberty of adults, and young people aged 16 & 17, in any setting, and with other public authorities being empowered to grant authorisations.   Renewed authorisations would also be allowed to subsist for up to three years.