Deprivation of Liberty After Cheshire West | Blog

In a unanimous decision (Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998) the Supreme Court has fundamentally recalibrated the legal understanding of “deprivation of liberty” under Article 5 of the European Convention on Human Rights (ECHR). Crucially, the Court held that the “acid test” established in Cheshire West was wrong in principle and should be overruled.

Previously, a person was considered deprived of their liberty if they were under continuous supervision and control and not free to leave, regardless of how “normal” the care setting appeared. This bright-line approach significantly widened the scope of situations requiring formal authorisation.

The Supreme Court has now replaced this with a more nuanced, multi-factorial assessment. Relevant considerations include the type of care provided, its duration, its effects, how arrangements are implemented, and their underlying purpose.

Importantly, the court recognised that an individual that lacks mental capacity under the Mental Capacity Act 2005 may still be capable of providing valid consent to restrictive arrangements through expression of wishes and feelings and indications of contentment. The “normality” of a setting (as compared with that of a prison cell) is now also relevant.

The ruling takes immediate effect and has understandably created uncertainty across the sector.

Overall, the decision narrows the scope of what constitutes a deprivation of liberty, while broadening the circumstances in which individuals may be considered to have consented to their care. In practice, this is likely to lead to a significant reduction in cases requiring formal authorisation.

Whilst existing authorisations will need to be reviewed and staff trained on the new meaning of a deprivation of liberty, in the meantime, where existing arrangements remain in a person’s best interests and are not disputed by the individual or their family, there is likely to be limited benefit in undertaking an immediate wholesale review.

This position is supported by interim guidance from the Department of Health and Social Care, which confirms that:

• existing authorisations should be reviewed as soon as practicable; but
• leaving them in place pending review will not, of itself, render the arrangements unlawful.

The Care Quality Commission (CQC) and the Association of Directors of Adult Social Services (ADASS) have adopted a similar stance. The CQC has indicated it will take a proportionate approach to regulation during this period, while ADASS has encouraged local authorities to allow for a period of adjustment as further guidance and resources are developed.

For providers, the focus should remain on delivering person-centred care, and ensuring that individuals’ wishes and feelings are central to any assessment. As further guidance emerges, practices will evolve, but for now, a balanced, proportionate approach will be key to navigating this period of transition with confidence.

For more information and advice on this topic, please contact Tim Coolican, Molly Quinney or a member of the regulatory team.