UK Supreme Court on Deprivation Of Liberty

A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Sch 10 to the Northern Ireland Act 1998 [2026] UKSC

• Significant developments:
• The court expressly overrules Cheshire West [§51]
• The “Acid test” is rejected [§53 (vi)]
• The starting point is a multifactorial assessment [§53 (i)]
• Capacity and “valid consent” are not the same thing. Valid consent is an autonomous Convention concept.

[§53 (ii) “The fact that an individual lacks legal capacity to decide on their living and care arrangements does not necessarily mean that they are de facto unable to understand and consent to those arrangements in a manner that prevents those arrangements from becoming a deprivation of liberty.”

And “an individual without legal capacity under domestic law, but who is conscious of their environment and has a basic understanding of their living circumstances so that they can express their view about their situation, who manifests their acceptance of the situation they are in, should have their opinion respected when an assessment is made of whether they are deprived of liberty under article 5.”

• Compliance and lack of objection are relevant. [§53(iv)]
• Where there is doubt do not infer consent. [§53(v)]

Read the judgment here.