![Life Without Cheshire West – An Overview of the Judgment in AGNI [2026] UKSCC 16](https://bhplaw.co.uk/wp-content/uploads/2026/06/consent-1024x682.webp)
Catrina Hall & Joshua Butterwick from BHP Law make sense of the Judgment.
All Court of Protection practitioners, advocates, Social Workers and Best Interest Assessors last week saw a crucial Judgment given by the Supreme Court.
The Supreme Court has now given their Judgment in a reference from the Attorney General for Northern Ireland in relation to the meaning of ‘Deprivation of Liberty’ and has also re-written the “Acid Test” which has been commonly used since Cheshire West in 2014.
The Court had been asked to decide on whether an amended Code of Practice proposed by the Attorney General for Northern Ireland would be applicable with Article 5 of European Convention of Human Rights, particularly in respect of the meaning of “deprivation of liberty.” Following a three day hearing in October 2025, their judgment has now been received and has wide ranging changes as to how a deprivation of liberty is to be perceived moving forwards.
Key points
The key points from the Judgment are that:
- The Supreme Court has overturned the decision in Cheshire West which introduced the Acid Test in respect of assessing the objective element as to whether a Deprivation of Liberty is indeed in place. Instead, the Court have implemented a “multifactorial” approach. Theyconsidered that the test for determining whether a person is deprived of liberty was found in Guzzardi v Italy (1981) 3 EHRR 333. The Guzzardi judgment takes into account the concrete situation and totality of the restrictions on the individual including the type, duration, effects and manner of implementation of the measures in question. No single factor is determinative. This suggests that a more ‘case by case’ analysis of the level of restrictions and their impact on the individual in question is required.
- The Court has also made clear that an individual who is assessed as lacking capacity to make decisions as to their care and residence can however still provide “Valid Consent” to the same This is providing they are “conscious of their environment and have a basic understanding of their living circumstances” to enable them to express their views about their situation. If an individual indeed accepts their situation then the Supreme Court has ruled that their opinion should be respected when assessing as to whether they are deprived of their liberty.
Both of the above are a huge sea change in respect of how the Court view deprivation of liberty and departs from the well known “Acid Test” which was introduced following Cheshire West in 2014.
Not only did the Judgment replace the Acid Test, it also gave views on whether a deprivation of liberty could remain in place at an individual’s home, with the Court stating that in those circumstance “…the restrictions imposed would need to be more severe or extensive to amount to such a deprivation, such as, for example a combination of restraint, medication and seclusion.” Certainly, this appears to raise the bar significantly higher as to whether a package of care at home could now be classed as a Deprivation of Liberty, which may well lead to a reduction in applications made under the “streamlined” procedure under Re X.
The Court also suggested that certain groups, in particular those who are “catatonic”, may never be in a situation whereby they are described as being deprived of their physical liberty due to being “…unconscious, in a minimally conscious state, or so profoundly disabled that they cannot conceptualise leaving let alone physically achieve this…”. Thus, it was held that if someone is physically unable to leave then they do not have any physical liberty to exercise and therefore there is no objective or subjective element of deprivation of liberty. The Court did however make clear this was not to provide “less favourable treatment” to those with such conditions and it did not give rise to discrimination because “[t]he non-disabled person is in a fundamentally different position from persons who are unconscious, or in a minimally conscious state, or profoundly mentally and physically disabled. The former is capable of leaving but prevented from doing so. The latter are simply, by reason of their condition, not capable of leaving.”
The Court felt however that where someone is temporarily unconscious because of a physical condition (such as an injury, disease or medication), it is relevant to take into account their potential to regain consciousness as when they regain consciousness, they will be prevented from leaving and therefore in such cases, the objective element is met. The subjective element is met also if they no not, or would not when consciousness is regained, consent to their arrangements.
Implications
The precise implications of the judgment are still to be seen however, given the now wider elements which are to be taken into account when assessing as to whether an individual is deprived of their liberty, alongside the newly introduced idea of valid consent, it may well be the case that individuals who are current subjected to a Standard Authorisation may well not be subject to the same under this new criteria.
Concerns have already been raised by advocacy groups that the Judgment may well have a significant impact on large groups of individuals who are subject to a level of restriction. Of course, at present, individuals who are subject to DoLS authorisations are able to readily access Legal Aid funding, along with access to advocacy support if they are unhappy with their care and support arrangements, and it is awaited to be seen as to the impact of the new test on the same. It is potentially the case that swathes of individuals who are currently able to access Legal Aid to challenge both their placements and packages of care may no longer be able to as easily access the same if they are no longer deemed to be deprived of their liberty. Further guidance is awaited in this regard.
There is a large amount of uncertainty however, the lack of definitive guidance in respect of what would amount to “valid consent” (other than the broad statements of an individual having a “basic level of awareness and consciousness of their living arrangements” to be able to communicate as to whether they are happy or unhappy with them) may well be a route which receives more focus in the coming months and years, with further judgments potentially required to clarify the same.
One thing does appear clear however; the importance of Care Act Reviews may well increase to ensure that individuals who may no longer have ready access to advocacy and support services are able to have their voices clearly heard moving forwards. Although it may well be a period of significant change and uncertainty, there is a recognition that now more than ever, all those who practice in the areas covered by the Court of Protection will need to work together to ensure that those individuals who are in the most vulnerable positions have their rights and voices heard moving forwards.
If you or anyone you care for, or support, have any queries following the Judgment then please don’t hesitate to get in touch for legal advice.
