The summary below is that prepared by the Supreme Court. 

Background to the Appeal
This case concerns the question of what counts as a “deprivation of liberty” under article 5(1) of the European Convention on Human Rights (“the Convention”) for adults who do not, as a matter of domestic law, have mental capacity to make their own decision about their residence and care arrangements, and who are living in community care settings which amount (or potentially amount) to confinement. Specifically, the case raises the question of whether such an adult can “validly consent” to their confinement (such that it is not a deprivation of liberty within the meaning of article 5), even though they do not have full mental capacity to make a decision about their living arrangements.

Article 5(1) ECHR provides that “everyone has the right to liberty and security of person,” and that “no one shall be deprived of his liberty” save in specified circumstances and in accordance with a procedure prescribed by law. Article 5(4) provides that “everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The European Court of Human Rights (“the Strasbourg court”) has held that a deprivation of liberty for the purpose of article 5 has both an objective and a subjective element. The objective element is satisfied where the person is confined to a particular restricted space for a material period of time, and an important aspect of the subjective element is that it may be satisfied where there is no “valid consent” to that confinement given by an individual with awareness of the situation they are in. The meaning of “valid consent” in this context, and its relationship to the domestic law concept of mental capacity, are important issues in this case.

In Northern Ireland, the question of whether a person lacks mental capacity to make a particular decision (including a decision about their residence and care arrangements) is answered by applying the statutory test contained in section 3 of the Mental Capacity Act 2016 (“MCA 2016”). That test considers whether the person is able to understand, retain, appreciate, use and weigh the information relevant to the decision, and communicate their decision; and, if they are unable to do so, whether that inability is caused by an impairment or disturbance in the functioning of their mind or brain. The statutory provisions for determining capacity in the law of England & Wales are materially the same.

In 2015, in an English case called Cheshire West (Cheshire West and Chester Council v P [2014] UKSC 19; [2014] AC 896), the Supreme Court had to determine whether three adults who lacked mental capacity to make a decision about their living arrangements were subject to a deprivation of liberty within the meaning of article 5 of the Convention. By a majority, the Supreme Court held that the “acid test” for a deprivation of liberty is whether an individual is subject to “continuous supervision and control” and “not free to leave.” The conventional understanding of Cheshire West is that the Supreme Court endorsed the equation of lack of mental capacity with lack of “valid consent” for the purposes of establishing whether or not there has been a deprivation of liberty.

The result of that conventional understanding is that where a person lacks mental capacity to make a decision about their living arrangements, and their actual living arrangements satisfy the “acid test” (ie the person is subject to continuous supervision and control, and is not free to leave), they are to be treated as being deprived of their liberty for the purposes of article 5. This means that their deprivation of liberty must be subject to safeguards: it must be “in accordance with a procedure prescribed by law” (article 5(1)), and the detainee is entitled to “take proceedings by which the lawfulness of [the] detention shall be decided speedily by a court” (article 5(4)).

In Northern Ireland, those safeguards find their expression as a matter of domestic law in the MCA 2016, including provisions contained in schedules to that legislation and in a code of practice (the Deprivation of Liberty Safeguards Code of Practice) issued by the Minister of Health for Northern Ireland under powers set out in section 288(1) of the MCA 2016. The code of practice has statutory force in that various persons (including those acting in a professional capacity) who take decisions in relation to an adult who lacks capacity for the purposes of the MCA 2016 “must have regard to it” (section 289(1) and (2)(a) of the MCA 2016).

The Minister of Health for Northern Ireland now seeks to issue a revised code of practice under section 288(4) of the MCA 2016, to replace the existing code of practice. The revised code would provide (contrary to Cheshire West) that even where a person lacks mental capacity to make decisions about their residence and care arrangements, they can nevertheless give valid consent to those arrangements through the expression of current wishes and feelings that go beyond mere acquiescence regarding their confinement.

The question raised by this reference is whether revising the code in this way would be incompatible with article 5 of the Convention. If it would be, then the Minister does not have the power to make the proposed revisions, because section 24 of the Northern Ireland Act 1998 provides that “a Minister or Northern Ireland department has no power to make, confirm or approve any subordinate legislation, or to do any act, so far as the legislation or act- (a) is incompatible with any of the Convention rights.”

The Attorney General for Northern Ireland therefore makes this reference to the Supreme Court, for a determination of the question whether the Minister would be acting incompatibly with article 5 of the Convention in issuing the revised code. In order to answer that question, the Supreme Court must decide whether the majority in Cheshire West erred in their interpretation of article 5, and if so whether the Supreme Court should now correct that interpretation.

Judgment
The Supreme Court unanimously holds that the Minister would not be acting incompatibly with article 5 of the Convention in issuing the revised code, and that it is therefore within his competence to issue the revised code. Lord Sales and Lady Simler give the judgment, with which Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lord Stephens and Lady Rose agree.

Reasons for the Judgment
The Supreme Court begins by clarifying the test which it must apply in order to determine whether or not in issuing the revised code of practice the Minister would be acting incompatibly with article 5. The question is whether the revised code authorises or approves unlawful conduct in a significant number of cases in the form of a breach of Convention rights of individuals [39].

If the decision in Cheshire West was correct in its interpretation of deprivation of liberty for the purposes of article 5, the revised code would involve the authorisation or approval of treatment of persons with impaired mental capacity by care providers in settings which in many cases would constitute an unlawful deprivation of liberty. It would therefore be outside the competence of the Minister to issue it [40].

However, the Supreme Court finds that the majority in Cheshire West erred in their analysis of the Strasbourg court’s case law regarding the meaning of deprivation of liberty in article 5 and in the interpretation they gave to that term [42]. The Supreme Court decides that it is appropriate to depart from the decision in Cheshire West [51].

The Strasbourg court’s approach to deprivation of liberty
The Supreme Court analyses the Strasbourg court’s case-law on article 5, both in general and in the context of deprivation of liberty in circumstances of mental impairment. The Supreme Court summarises the applicable principles at [53].

Article 5 is concerned with the physical liberty of the person; it is not concerned with mere restrictions on liberty of movement. The starting point in assessing whether someone has been deprived of their liberty within the meaning of article 5 is the specific situation of the individual concerned. That assessment is multifactorial and takes account of a range of factors including the type, duration, effects and manner of implementation of the measure in question [118]. No single factor is determinative. The required focus on the “concrete situation” of the individual and the “realities of the situation”, taking account of the type of measure in question, means that it is relevant to have regard to the purpose of the measure, even though this is not decisive by itself [130]-[134].

The difference between deprivation and restriction of liberty is one of degree or intensity, not one of nature or substance [119]. Distinguishing between a deprivation of liberty and a mere restriction on liberty of movement is not easy and will be particularly difficult in borderline or marginal cases [127]. The approach should be practical and realistic. In difficult or borderline cases, the paradigm of imprisonment in a cell is a useful comparator.

There is an overlap between the objective and subjective elements of a deprivation of liberty. The assessment of the objective element can take account of the specific context and circumstances of the restrictive measures that are different from the paradigm of confinement in a cell. The effect of restrictions on an individual, including their compliance and lack of objection (if they are capable of giving tacit agreement) is relevant in assessing the objective element of confinement. The relative normality of a placement is also relevant in this assessment. Similarly, in situations that are far from the paradigm of confinement in a cell, the purpose for which a measure has been taken is a factor to be considered [53(iv)]. The closeness of an analogy with the paradigm of imprisonment in a cell varies greatly with the context and concrete situation of the individual [145]. Ordinary expectations and the ordinary conduct of life play a significant role in the assessment of whether there is a deprivation of liberty [145].

“Valid consent” in the sense used by the Strasbourg court in the context of the subjective limb of a deprivation of liberty is an autonomous concept (understood according to the case-law of the Strasbourg court) and is not to be equated with the concept of legal capacity in domestic law. The concept of “valid consent” is treated by the Strasbourg court as part of the definition of a deprivation of liberty; it is concerned with a person’s de facto understanding of their situation and how they experience it. A person may not have mental capacity according to domestic law to make decisions about their care and residence arrangements, but if they have a basic level of awareness and consciousness of their living arrangements that is sufficient to enable them to know and communicate whether they are happy or unhappy with them, they may be treated as able to give or withhold “valid consent” to confinement by an expression of their wishes and feelings [201].

The process of assessing whether there has been a deprivation of liberty is not always easy, and will be particularly difficult in borderline or marginal cases. Equally, it may sometimes be difficult to ascertain the true feelings or preferences of vulnerable individuals who do not have mental capacity to decide on their living arrangements. Where there is serious doubt, no inference of valid consent should be drawn [53(v)].

Is Cheshire West correct?
The Strasbourg court has continued to apply the multifactorial test in determining when an individual is deprived of liberty. It has never adopted an acid test, either generally or in the context of living arrangements of those who lack mental capacity. In setting out the acid test, the majority in Cheshire West went beyond the Strasbourg court’s jurisprudence and departed from the long-standing multifactorial approach to determining when a person is deprived of liberty [183].

The Supreme Court now concludes that the majority decision in Cheshire West was wrong in six particular respects.

First, the acid test is not sufficient by itself to show that there is a deprivation of liberty according to the Strasbourg court’s case law. It may be relevant as part of the multifactorial test set out by the Strasbourg court, but to determine whether an individual is subject to a deprivation of liberty, the court must focus on their concrete situation and take account of the whole range of factors in the particular case, including the type, duration, effect and manner of implementation of the measures in question [184].

Secondly, the majority in Cheshire West was wrong to conclude that a “person’s compliance or lack of objection” is never legally relevant to the question of objective confinement. The Strasbourg cases demonstrate that there is some overlap between consideration of the objective and subjective elements of a deprivation of liberty [187]-[192].

Thirdly, the acid test takes no account of the type of setting where an individual receives care and treatment. However, the normality of the circumstances in which an individual is cared for (eg the fact that they are living in their own home or in the community) is a relevant factor in assessing whether there has been a deprivation of liberty within the meaning of article 5 [193].

Fourthly, the acid test takes no account of the fact that an individual might be subject to innate limitations by reason of their own physical or medical condition. The acid test therefore fails to reflect the need for coercion or some externally imposed restrictions on an individual that prevent them from exercising their fundamental right to physical liberty [195].

Fifthly, the majority in Cheshire West were wrong to discount the potential relevance of the purpose for which measures of confinement were imposed [200].

Sixthly, the approach of the majority in Cheshire West wrongly equates lack of legal capacity with lack of valid consent. If a person lacks legal capacity to make decisions about their care and residence arrangements, but nevertheless has a basic level of awareness about those arrangements which is sufficient to enable them to know and communicate whether they are happy or unhappy with them, then they can be treated as being able to give or withhold valid consent to confinement by an expression of their wishes and feelings [201].

The Supreme Court therefore decides not to follow Cheshire West and overrules it [207]. In answer to the question referred, the Supreme Court concludes that the Minister would not be acting incompatibly with article 5 in issuing the proposed revised code, which neither authorises nor approves unlawful conduct in the form of a breach of the article 5 rights of individuals to whom it is applied. The Minister would be acting within competence in issuing it [208].

References in square brackets are to paragraphs in the judgment.

NOTE:
This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at: Decided cases - The Supreme Court

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OQD has been a patient at the Royal Hospital for Neuro-Disability (RHND) since 2014, following a serious assault in 2013 that caused severe hypoxic brain damage. OQD has remained in a Prolonged Disorder of Consciousness throughout, with no neurological improvement. It is the fifth such case raising similar concerns about systemic failures at RHND.

In this judgment, Lieven J finds the delays 'deeply troubling and unjustifiable' and that the best interests of OQD have been overlooked for years. At [31] she states:

"In my view, a significant issue for the RHND is its focus on the views of the family and on reaching consensus with the family on a decision. As Hayden J sets out in both JP and GU, the views of the family are sought primarily in order to illuminate what the P would have wished, not for their own sakes. There is a degree to which the RHND appears to have put the views of the family concerned above focusing on the best interests of the patient. This is plainly wrong."

She also says she would send the judgment to the Secretary of State for Health and the Chief Executive of NHS England.

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The Trust's application, supported by her special guardians, was for a declaration regarding the medical treatment of FB, a 19-year-old with trisomy 8 mosaicism and significant learning disabilities. In July 2025, FB was diagnosed with a high-risk form of acute myeloid leukaemia. Her treating clinicians concluded that whilst stem cell transplant was the only curative option, FB's learning needs and associated behaviours rendered optimal delivery of that treatment impossible. Two courses of chemotherapy had been administered but proved highly distressing. The Trust sought a declaration that palliative care only was in FB's best interests.

Ms Justice Harris granted the declaration, finding it was not in FB's best interests to undergo stem cell transplant, further chemotherapy, or other treatments. The clinical consensus from treating and independent experts was that FB's survival prospects over two years were only 10-15%, as compared with 40% for the average 19 year old, due to her inability to comply with the demanding treatment regime. The court weighed the significant physical and psychological burdens of further treatment against its limited prospects, having regard to FB's own expressed wishes to return home, her family's views, and her Article 2 and Article 8 rights.

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RH had a rare liver disease and had been receiving treatment since an early age. An attempted liver transplant resulted in a bile leak that could not be stopped causing infection and organ failure. By February 2026 the clinicians thought RH was actively dying and no further treatment should be undertaken. The family disagreed with the move to palliative care and the Trust, following Townsend, continued with renal replacement therapy.

At [46] Mr Justice Peel finds the effects of the treatment mean that  RH lacks capacity so he then assesses his best interests. While acknowledging RH's presentation has improved, this is because of the palliative RRT which will not lead to recovery and also that RH experiences discomfort [52]. However he decides at [53] the treatment is not yet intolerable so can continue but if there is a serious deterioration

"then the clinicians are authorised not to treat with mechanical ventilation or vasopressors. If the RRT fails (e.g by reason of a blood pressure drop) or the line cannot be inserted, then the treatment can be withdrawn or withheld.These are ceilings of care which in my judgment are in RH's best interests. For the avoidance of doubt, my order is permissive; it does not prevent the clinicians from administering any treatment they think appropriate, but allows them lawfully to withdraw or withhold certain aspects of treatment." 

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On or around 5 September 2025, AS sustained a massive stroke involving three blood vessels and causing significant damage to her brain; it occurred in the context of atrial fibrillation. She was aphasic (unable to understand or produce speech). She was admitted to hospital between 5 September and 18 November 2025. Of particular relevance to this application is that she had very severely impaired swallowing function. She had a nasogastric tube ("NG tube") inserted for nutrition and hydration until 20 October 2025. During that period she had significant issues with the NG tube, repeatedly vomiting and regurgitating. When the NG tube was removed, she did not regain swallowing functionality. While AS still had capacity she made an advance statement saying that if she lost capacity: "If my health becomes very poorly or in an emergency situation – I would want all treatments and care necessary to prolong my life. If I was at the end of my life I would want my life to be prolonged using any treatment including by artificial means". It was the Trust's opinion that it was in AS's best interests to continue risk feeding (with no insertion of an NG tube/PEG), cease blood tests, IV fluids and potassium, take a palliative care approach to ensure comfort and discharge to a more comfortable and appropriate setting under the fast track pathway. The family of AS opposed this treatment plan.

The court declared that the proposed treatment plan was in AS's best interests. If the Trust were to proceed with a NG tube, that would effectively preclude AS from returning home because it would not practically be possible to feed AS in this way in the community. It is likely that AS would prefer to be at home, surrounded by her loved ones, rather than on a hospital ward. And it is likely that she would prefer to be as comfortable as possible rather than subjected to invasive and distressing treatment.

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PX is 18 years old. She has been diagnosed with Downs Syndrome, Hirschsprung's Disease (a bowel disorder), Hypothyroidism and Nystagmus. She has learning difficulties, speech and language difficulties, which affect her capacity to make decisions about her affairs. This hearing was to determine what contact she should have with her mother MX and her father PX, where she should reside during the holidays and whether MX and PX could take her abroad for a holiday. MX had asserted throughout these contested hearings that FX was physically and sexually abusing PX. 

The court made orders that 1) PX lacks capacity to conduct these proceedings, and lacks capacity to make a decision about her residence and contact arrangements; 2) it was in PX's best interests that she should spend the college holidays in FX's care; and 3) it was in PX's best interests that her face to face contact with MX should be supervised by a professional, and where (for practical reasons) this is not possible, MX's contact must be limited to video calls, now to be monitored by a professional (college staff or a SW). 

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HDEB is a 22-year-old man. He was diagnosed with autism, attention deficit hyperactivity disorder and oppositional defiant disorder when he was 2-years-old. In the last two years he has also been diagnosed with epilepsy. HDEB requires 1:1 support during the day, waking night supervision and 2:1 support when he is displaying heightened behaviour and when he is in the community. When he turned 18, he moved to his current residential placement, BC in South Wales. JB and SB are HDEB's loving and caring parents who are already HDEB's deputies for property and affairs. This was an application to be appointed as joint and several deputies for personal welfare ("PWDs").

The application was refused for the principle reason that the appointment of PWDs would be an unnecessary infringement of HDEB's right to autonomy as a 22-year-old adult. It would not be in HDEB's best interests to appoint JB and SB as PWDs for HDEB. Collaborative decision making has worked in his best interests and if there are disagreements over major decisions, such as residence, the Court of Protection should resolve those disagreements rather than PWDs. The court came to a different decision in this case than Mr Justice Poole did in Parr v Cheshire East and Anor [2026] EWCOP1, despite the circumstances of HDEB, JB and SB having similarities to that of Ruby and Alison Parr. The court therefore granted permission to JB and SB to appeal to a Tier 3 judge if they wished to do so.

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