In June, the UK’s Supreme Court effectively dismissed the ‘acid test’ established in Cheshire West, a framework relied upon by healthcare practitioners to assess when legal safeguards should apply in cases of deprivation of liberty. Disability rights charities have reacted to the Supreme Court’s judgment with alarm.

Under the Cheshire West framework, a person was considered deprived of their liberty if they lacked the mental capacity to consent to their living arrangements, had been placed under continuous supervision and control and did not have the freedom to leave. Meeting these conditions triggered a legal process called the deprivation of liberty safeguards (‘DoLS’). These mandated the involvement of two independent assessors, the appointment of a representative and a route to challenge the deprivation via the Court of Protection.

The Supreme Court was ruling in a case, referred to as AGNI, brought by the Attorney-General of Northern Ireland. The Attorney-General sought to clarify whether a proposed revision to the country’s Mental Capacity Act Code of Practice was compatible with the European Convention on Human Rights (ECHR).

Oliver Lewis, a barrister from Doughty Street Chambers who represented the three charity interveners in the case, Mencap, Mind and the National Autistic Society, says that disabled people who use non-verbal communication might be at risk of ‘being misunderstood, and their views misinterpreted’.

More broadly, Lewis says, ‘there’s also concern that a disabled person could be seen to consent to their living arrangements where they are pressured to do so, where they live in an institutional setting which has a closed culture or where they are dependent on care by someone else and fearful of expressing their true wishes.’

In a statement, the Attorney-General of Northern Ireland, Dame Brenda King, welcomed the Court’s ‘authoritative ruling which will assist all of us who are concerned with the protection of rights and implementation of mental capacity legislation.’

Topline guidance issued by the UK government says that the new multifactorial assessment should consider elements such as the type of restrictions a person is subject to, the effects of these on the individual and whether they object. More comprehensive ‘interim guidance’ is expected later in the summer.

Core to the judgment was the Court’s finding that Cheshire West had incorrectly interpreted the meaning of deprivation of liberty as defined under Article 5 of the ECHR. To evidence this, it relied heavily on European Court of Human Rights (ECtHR) case law.

Peter Bartlett, Nottinghamshire Healthcare NHS Trust Professor of Mental Health Law at the University of Nottingham, highlighted that both legal systems and the nature of care – from heavily institutionalised to strongly community-based – vary markedly across the Council of Europe. Therefore, he says, the direct application to the UK of precedents set by case law in other jurisdictions isn’t always helpful.

‘The notion that the ECtHR can provide the level of guidance that the Supreme Court seems to expect is unrealistic at best’, he says. ‘And it is perhaps fair to say that after the Human Rights Act, it is the job of the UK courts to make sense of ECtHR jurisprudence in a UK context.’ When approached, the Supreme Court told Global Insight that it doesn’t comment on its judgments.

The system of safeguards hinges on the ability of staff in care homes and hospitals being able to readily identify people who might be deprived of their liberty. While Cheshire West provided a clear set of criteria for staff to apply, AGNI gives more weight to the subjective elements of an individual’s circumstances.

Mark Stephens CBE, Co-Chair of the IBA’s Human Rights Institute, says that while the judgment may be legally correct, it will be significantly harder to apply in practice than Cheshire West. ‘My concern is less about the legal reasoning and more about the operational reality,’ he says, as ‘subtle legal tests are not always easy to implement in overstretched and underfunded health and social care systems.’ While nuance is available in a courtroom, he adds, it’s often harder to deliver consistently on the frontline.

Stephens, a consultant at law firm Howard Kennedy, doesn’t believe that protections will disappear overnight, but fears they may be inconsistently enforced. ‘Safeguarding vulnerable people should not become a postcode lottery,’ he says.

The Cheshire West framework itself faced criticism, including from social workers who felt the ‘acid test’ would sometimes place appropriate arrangements under undue scrutiny, and from local authorities, who found themselves overwhelmed by the administrative burden of DoLS applications.

In 2013-14, just before the Cheshire West framework was established, there were 13,000 DoLS cases in England, while in the following year there were ten times as many. According to Department for Health and Social Care statistics, 364,900 applications for DoLS were received in 2024-25.

The Court’s judgment in AGNI is set to reduce these figures but, given the upheaval following the overturning of Cheshire West and with many existing DoLS authorisations expected to require review, the case numbers will probably still be substantial.

Header image: stokkete/Adobe Stock