Until Surrey County Council v P; Cheshire West and Chester Council v P [2014] UKSC 19, people who lacked mental capacity and lived in restrictive settings could be legally deprived of their liberty under Art 5 of the European Convention on Human Rights. The 2014 decision set legal safeguards, requiring either review by a judge or an independent assessor to ensure the person’s placement in a care home, locked unit or other living arrangement was safe, justified and in the person’s best interests. After Cheshire West, approximately 400,000 persons ‘of unsound mind’ were treated as being deprived of liberty in England and Wales per year.
In a unanimous ruling this week, however, Lord Sales and Lady Simler said: ‘In setting out the acid test, the majority decision in Cheshire West departed from the longstanding multifactorial approach to determining whether a person is deprived of liberty within the meaning of Article 5 and is wrong.’
According to 11KBW, chambers of Joanne Clement KC and Zoe Gannon, who acted for intervenors the Secretary of State for Health and Social Care, the court held a whole range of factors must be taken into account, including the type, duration, effect and manner of implementation of the measure in question.
The case, A reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16, centred on whether a code of practice accurately stated the law on consent to confinement.
However, charities Mencap, Mind and the National Autistic Society said: ‘Stripping away these safeguards makes it easier for abuse and neglect to go unnoticed behind closed doors. A litany of previous wrongdoings demonstrate how closed cultures, lack of independent oversight and restrictive care can lead to abuse scandals and decisions like this fly in the face of everything we've learnt.’ They said safeguards would now no longer apply if social workers considered the restrictions ‘normal’ or the person showed a positive attitude about their placement.
