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With Cheshire West overturned, Laura Davidson considers whether a more flexible approach to deprivation of liberty comes at the cost of vital safeguards
- The Supreme Court has overturned Cheshire West’s ‘acid test’, replacing it with a broader, contextual assessment of deprivation of liberty that gives greater weight to consent, wishes and feelings, and the purpose and effect of restrictions.
- Questions remain over whether this more flexible approach risks weakening safeguards for vulnerable adults, particularly those whose disability or dependency makes it difficult to express objection or distinguish genuine consent from passive acquiescence.
Twelve years after its judgment in Cheshire West and Chester Council v P [2014] UKSC 19, the Supreme Court has overturned its own decision. The Attorney General for Northern Ireland brought a reference (Re Attorney General for Northern Ireland’s Reference [2026] UKSC 16), wishing to revise the Deprivation of Liberty Safeguards Code of Practice under Northern Ireland’s Mental Capacity Act 2016. The draft code indicated that not everyone lacking mental
