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11 September 2026
Issue: 8176 / Categories: Legal News , Court of Protection , Mental health
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NLJ this week: Safeguards under strain

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The Supreme Court has overturned Cheshire West’s bright-line test for deprivation of liberty, replacing it with a broader, more contextual assessment that gives greater weight to an individual’s wishes, feelings and apparent consent

Writing in NLJ this week, Dr Laura Davidson, barrister at No5 Chambers, considers Re Attorney General for Northern Ireland’s Reference. The court held that continuous supervision and lack of freedom to leave do not automatically amount to detention; the purpose and effect of restrictions, relative normality and valid consent also matter. As Lady Hale once put it, ‘a gilded cage is still a cage’, but the new ruling asks more closely whether its occupant considers it one.

Davidson welcomes clarity that passive acquiescence is not valid consent, yet warns that vulnerable people may be least able to communicate dissent. Replacing a certain test with discretion may reduce DoLS safeguards and produce disputes over whether consent is genuine.

MOVERS & SHAKERS

Fieldfisher—Julian Balson

Fieldfisher—Julian Balson

Indirect tax investigations and litigation specialist strengthens contentious tax offering

DMH Stallard—Seb Jones

DMH Stallard—Seb Jones

DMH Stallard makes Magic Circle hire

TV Edwards—Sarah Inchley, Caroline Andrews & Cheryl Thompson

TV Edwards—Sarah Inchley, Caroline Andrews & Cheryl Thompson

Three new Heads announced at leading London-based law firm

NEWS
A High Court decision has clarified that a home may be unfit for human habitation not only where conditions endanger health or safety, but also where they seriously undermine comfort and convenience

A longer time limit for employment tribunal claims, new charity law thresholds, property tribunal recruitment and appellate guidance on small-claims costs feature in the latest Civil Way round-up

A recent High Court ruling could make issue estoppel considerably more complex in cross-border litigation, requiring parties to consider the foreign law governing the underlying claim
The Supreme Court has overturned Cheshire West’s bright-line test for deprivation of liberty, replacing it with a broader, more contextual assessment that gives greater weight to an individual’s wishes, feelings and apparent consent
Jonathan Fisher KC’s wide-ranging fraud report contains worthwhile proposals, but turning them into workable reform will require money, capacity and political will
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