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A much-anticipated new Supreme Court ruling has dismantled a landmark 2014 legal framework, known as Cheshire West, which established a universal “acid test” for determining when a disabled person is entitled to safeguards against deprivation of liberty.
The Cheshire West ruling broadened the definition of what it means to be ‘deprived of liberty’ and led to an increase of 300,000 referrals between 2013-14 and 2023-24, as well as a backlog of 125,000 cases.
The Attorney General for Northern Ireland brought a challenge to the Supreme Court regarding the ‘acid test’ and the question of what constitutes a ‘deprivation of liberty’. This was done on the basis that it automatically classified vulnerable people lacking mental capacity as being “deprived of their liberty”, triggering mandatory and intrusive state safeguards – even if the individual was happy and consenting to their care arrangements.
The ruling today means other health departments across the UK could change their legal frameworks on care arrangements for those who are severely disabled.
Leading disability charities, however, say this ruling could now strip fundamental human rights protections from potentially hundreds of thousands of severely disabled people deprived of their liberty.
Cheshire West ruling could make it easier for abuse and neglect to go unnoticed
In a joint statement, Mencap, Mind and National Autistic Society said that the judgment removes independent checks, advocacy, and automatic access to legal aid. They added that this closes the gateway to justice and support, as well as potentially making it easier for abuse and neglect to go unnoticed behind closed doors.
- Further reading: Deprivation of Liberty Safeguards: An uncertain future
- Further reading: Deprivation of liberty: how to identify when it may be taking place
The statement said: “We are calling on the UK government to act with urgency to issue interim guidance to local authorities and health and care providers to prevent them being plunged into chaos by this ruling. It should urgently bring in new laws and guidance that strengthens protections for some of the people who are most at risk. This should include clearly explaining how disabled people and their families can challenge breaches of their rights and get the advocacy and support they need.
“To the many people that will be affected by this ruling now and in the future, we stand with you and you are not alone. This decision devalues the rights and dignity of disabled people in this country.”
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What will the ruling change?
A “multifactorial approach” will now be used to determine whether someone is deprived of their liberty. For example, if the person is happy with their care arrangements and can express this, it can be treated as their consent to those arrangements, and no deprivation of liberty arises. There is, however, very limited guidance on how the “multifactorial approach” is to be applied in practice.
Until this decision, people who lacked mental capacity and lived in highly restrictive settings were legally ‘deprived of their liberty’ by reference to Article 5 of the European Convention on Human Rights. This triggered vital legal safeguards, requiring either review by a judge, or an independent assessor to regularly go into care homes, supported living arrangements, and locked units to ensure that the person’s placement is safe, justified, and in the person’s best interests.
Disabled people were also guaranteed a representative to check on them and help them to access a court. Now these safeguards are not needed if:
- Social workers or carers consider the restrictions ‘normal’ for people with their disabilities and in their best interests.
- People who lack mental capacity are considered by their social workers or carers to have a ‘positive attitude’ about their placement or ‘accept’ it;
- People don’t have the physical ability to leave.
Independent inspections now likely to be cancelled
According to the charities, the dismantling of the Cheshire West Acid test means that the vast majority of people currently protected by the Deprivation of Liberty Safeguards system in the UK will likely have their existing checks and independent inspections cancelled.
They add that the Court implies that individuals with profound cognitive disabilities cannot be “deprived” of liberty because their condition limits their ability to experience it—a view that devalues their fundamental rights. It has been suggested that in borderline cases, for a deprivation of liberty to exist, a care setting must closely mirror the extreme confinement of a prison cell.
In addition, if a vulnerable person appears passive or does not actively protest their arrangements, the law may recognise this as “consent” — even if they are subjected to routine physical restraint or chemical sedation or have never known a life without a high level of restriction.
