On 2 June 2026, in A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16, a seven member Panel of the Supreme Court unanimously overruled the 2014 majority decision in Cheshire West (for more on Cheshire West, see here, but note that what is contained on that resources page is of historical interest alone now).
The judgment summarised
The judgment is long and detailed. A summary by the Supreme Court can be found here. In (very) short terms, the Supreme Court has made clear that the ‘acid test’ that Lady Hale had set down in Cheshire West should not be followed, because deprivation of liberty is ‘multi-factorial.’ It also held that there are circumstances in which it is possible for a person who lacks capacity applying the Mental Capacity Act 2005 to consent to arrangements which confine them nonetheless to be seen (through the expression of their wishes and feelings) to be giving legally valid consent so as to take those arrangements out of the scope of Article 5.
I have recorded this video about the meaning of deprivation of liberty following the decision
The slides are available here.
A good explanation of the background to and the key conclusions of the case by Tim Spencer-Lane for Community Care magazine can be found here. I have also recorded a podcast with Community Care about the case (on 8 June) about the case, available via Apple and Spotify.
Commentary
Members of the 39 Essex Chambers Mental Capacity Report team prepared a summary of and commentary on the case, to be found in the June Mental Capacity Report here. A recording of the rapid reaction webinar featuring members of the team held on the day that the judgment was handed down can be found here. The National Mental Capacity Forum held a webinar on 24 June called “After the Acid Test: Safeguarding Rights in Care Settings after the Overturning of Cheshire West:” a recording and the slides can be found here.
The decision has pan-UK implications: for initial thoughts in relation to Scotland from the Scotland editors of the 39 Essex Chambers Mental Capacity Report, see here.
As Google will reveal, many law firms and barristers Chambers are producing webinars / materials relating to the case. I am not going to add these on a rolling basis, but when the dust has settled slightly and /or there is a specific reason to add one, I will do so. One early one (held on 8 June) by Weightmans was very helpful as regards the range of perspectives (including social work) given: a recording and transcript can be found here.
Google and scrolling social media will also reveal very strong, and very strongly divided, opinions about the case. The three charities who intervened (Mind, Mencap and NAS) put out a statement on the day of the judgment. A similar set of views were expressed by NSUN (the National Survivor User Network). For a somewhat different take from BuDS, another user-led disability charity, see here. The British Institute of Human Rights set out an initial response on 19 June 2026 here, emphasising the wider role of the Human Rights Act 1998 and the ECHR.
I will not try to keep a rolling set of links to opinions, but when reading them, it is perhaps important to have in mind:
(1) That the Supreme Court placed considerable reliance on the availability of safeguards in the MCA 2005 and in the law more broadly to secure appropriate decision-making (and review of decision-making) in relation to the care and treatment of those with impaired decision-making capacity (see paragraphs 10 and 141). Those who are concerned about the implications of the judgment may want to think about how (in whatever context they operate) what might be said to have been the promises made to the court as regards the wider safeguards can be made good;
(2) The Supreme Court also placed significantly greater emphasis on Article 8 ECHR than the majority had done in Cheshire West (as, indeed, did Peter Jackson J in the Neary case to which the Supreme Court expressly referred at paragraph 10 of the judgment in AGNI). It is therefore likely that there will be considerably greater focus on how the safeguards set out above appropriately secure the Article 8 rights of those with impaired decision-making capacity – including, in particular, identification of and accounting for their wishes, feelings, beliefs and values.
To date, the most detailed commentary on the case is perhaps that of Belinda Schwehr of CASCAIDr (8 June 2026); the commentary is of note for the wider observations that it makes about matters such as legal aid consequences.
Guidance
The DHSC has now produced initial guidance (15 June 2026) both as to the meaning of deprivation of liberty, and also steps to take by local authorities and other bodies. On 18 June 2026, ADASS issued a ‘note‘ building on an initial statement on 5 June, supporting the DHSC guidance and setting out a number of points it considered should be followed by all councils.
The Department of Health in Northern Ireland issued interim guidance and an accompanying information leaflet on 24 June 2026 available here.
West Midlands ADASS has published updated DoLS forms to reflect the judgment – there are no statutory forms for the DoLs process, but these forms are used by many local authorities, and the updated forms represent an operationalisation of the judgment (note, the relevant updated forms say April 2026, but they were prepared in June 2026).
Initial guidance provided on the day by Senior Judge Hilder to judges of the Court of Protection considering so-called ‘community deprivation of liberty” orders is available here.
CQC has issued an initial statement (8 June 2026) here.
I will add further guidance when it becomes available.
Full disclosure and disclaimer
Full disclosure: I was in the case as one of the Counsel for the Attorney General.
Disclaimer: I do not necessarily agree with what is said in the materials that I link to on this page; some of the commentary, in particular, I may disagree with, but I consider it important to provide a range of materials for people to consider.
