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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.
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