The Supreme Court has handed down a significant judgment which reshapes how deprivation of liberty is assessed for people who lack capacity to make decisions about their care and living arrangements with immediate effect. John Davies, senior associate in Hugh James’ Private Wealth Disputes team, explores the significant practical and legal issues that will arise from the ruling.
For many years, the decision in P v Cheshire West and Chester Council [2014] UKSC 19 (‘Cheshire West’) set the framework for determining whether someone is deprived of their liberty.
However, the Supreme Court has recently departed from that approach, raising important questions about the balance between protecting vulnerable individuals, respecting personal autonomy and safeguarding their right to liberty.
A landmark shift in the aw
In Cheshire West, the Supreme Court established what became known as the ‘acid test’, under which a person was generally considered deprived of their liberty if they were:
a) under continuous supervision and control; and
b) not free to leave.
The test provided a consistent framework for identifying situations where someone is deprived of their liberty, regardless of whether the arrangements were considered in the person’s best interests or if the person consented to them.
However, the approach widened the category of individuals regarded as deprived of their liberty, contributing to an increase in authorisation applications.
The Supreme Court has now favoured a broader and more nuanced assessment. In doing so, it has removed the acid test. The decision held that the original limbs of the acid test remain relevant, but they are not sufficient by themselves. Instead, the person’s ‘concrete situation’ must be considered more holistically.
This development means that the court gives more consideration to consent, though the issue that may arise is how that consent is conveyed. It held that lack of capacity does not automatically mean a person cannot give ‘valid consent’.
A person who lacks capacity to make decisions about residence and care may still give valid consent through wishes and feelings, if they have sufficient basic awareness and can communicate whether they are happy with the arrangements. Practically, this means some arrangements which would previously have been treated as a deprivation of liberty may not now do so.
Protection versus autonomy
Supporters of the decision argue that Cheshire West resulted in an overly expansive interpretation of deprivation of liberty. From this perspective, the decision represents, to some, a welcome return to a more contextual approach.
However, critics are concerned that the judgment weakens safeguards for the most vulnerable. Disability rights organisations have voiced fears that fewer individuals will benefit from independent scrutiny of restrictive care arrangements and the procedural protections that developed following Cheshire West. Primarily, they are concerned about the impact on individuals with profound cognitive impairments and those unable to communicate objections to their care arrangements.
The court observed in borderline cases that “the paradigm of imprisonment in a cell is a useful comparator”. The concern is that vulnerable individuals living under highly restrictive care regimes may now find it harder to access the safeguards and independent scrutiny that developed following Cheshire West.
What about young people?
Perhaps the most striking omission from the judgment is the absence of any substantive discussion of 16- and 17-year-olds. Although the judgment defines adults as those aged over 16, it does not consider whether any distinction should be drawn between older children and those aged 18 or above.
That silence is noteworthy given the significant body of deprivation of liberty case law that has developed in relation to young people over the last decade, including the key decision in Re D (A Child) [2019] UKSC 42.
Applying principles established in Cheshire West, the court held that parental responsibility cannot be used to authorise arrangements which would otherwise amount to a deprivation of liberty. In reaching that conclusion, the court recognised the distinct legal position of young people, reflecting what Lady Hale identified as “an appreciation of the different needs of this particular age group”.
The practical effect of Re D was that many restrictive care arrangements for older children required independent legal authorisation and judicial scrutiny. Consequently, a growing number of such cases were brought before the Court of Protection rather than being addressed through the exercise of parental responsibility or the Family Court.
The judgment is expressly directed at people aged 16 and over. However, it remains unclear how the court’s approach to consent, confinement and deprivation of liberty is intended to operate in respect of these older children.
In a judgment that reshapes the legal landscape, the implications for adolescents may prove to be one of its most significant consequences.
What happens next?
The departure from Cheshire West is likely to have significant practical consequences, potentially reducing access to procedural safeguards, independent scrutiny and statutory advocacy for many vulnerable individuals. Local authorities, health bodies and practitioners will now need to adapt to a rapidly evolving legal landscape, whilst families will undoubtedly be seeking reassurance that appropriate safeguards remain in place for their loved ones.
The judgement is possibly the most significant ruling in relation to deprivation of liberty since Cheshire West itself. There are many who are apprehensive about what this ruling will mean, with some calling it the “biggest rollback of disability rights in a generation”.
Undoubtedly, there will be significant legal issues that arise; all we can hope is that no individuals are unfairly treated whilst the lacuna left by the loss of the acid test is filled.
About the author
John Davies is a senior associate in Hugh James’ Private Wealth Disputes team, based in the Cardiff office. John has considerable experience in the field of private wealth disputes, and he advises across the whole spectrum of claims including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, claims under the Inheritance (Provision for Family and Dependants) Act 1975, and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts. John has a specialism in trial preparation and advocacy and has obtained higher rights of audience that allows him to speak in the High Court and above on behalf of his clients. John is one of the leading practitioners in the area of private wealth disputes in Wales, which is recognised in his recommendation as a rising star in the Legal 500 rankings of 2023.
