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.
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.
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 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.
Google and social media will also reveal very strong, and very strongly divided opinions about the case. Again, I will not try to keep a rolling set of links to such 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.
Guidance
At the time of writing, we do not yet have guidance from the DHSC as to how the decision is to be applied (nor do we have guidance from DfE as to how it is to be applied in relation to those under 18). I will add it as soon as possible. Similarly, I will add guidance from other relevant statutory or professional bodies.
