Supreme Court judgment on deprivation of liberty

The Supreme Court handed down a pivotal judgment on deprivation of liberty, mental capacity, and Article 5 of the European Convention on Human Rights on 2 June 2026. The judgment is likely to have significant consequences for families, carers, advocates, deputies, attorneys, care homes, local authorities, NHS bodies, and others involved in decisions about where and how a person who lacks capacity is cared for.

A number of detailed legal summaries have already been published by specialist counsel instructed in the case and by public law commentators as follows:

1. 39 Essex Chambers: here
2. Serjeant’s Inn: here
3. 11 KBW: here
4. Doughty Street Chambers: here

This Keynote provides a brief overview of what the judgment may mean in practical terms for those involved in supporting people who lack capacity to make decisions for themselves.

The judgment

In broad summary terms, the Supreme Court has moved away from the approach established in the previously leading case of Cheshire West, under which a person was generally treated as deprived of their liberty if they were under continuous supervision and control and not free to leave. Notably, the Court has:

• restored a broader, fact-sensitive assessment, looking at the person’s concrete situation and the type, duration, effect and manner of implementation of the restrictions placed upon them;
• decided that, even where a person is, objectively, deprived of their liberty and lacks capacity to make decisions about their care, they can still consent to that deprivation of liberty, such that the arrangements do not constitute an Article 5 deprivation of liberty requiring authorisation.

Implications

The practical effect is that many arrangements which would previously have required authorisation under the Deprivation of Liberty Safeguards, or by the Court of Protection, will no longer require that authorisation. Also, the question “is this person deprived of their liberty and is authorisation required?” will now be less easily answered in many cases and may become more contentious. It will require closer consideration of the particular facts, including the person’s wishes and feelings, whether they appear happy or content with the arrangements, whether they are objecting, and whether there is any real doubt about their views. This has immediate significant implications across health and social care reviews likely to be required in a large number of cases.

There will now be a period of uncertainty and considerable operational pressure for the courts, care homes, and local authorities as they seek to understand how to apply the outcome of the judgment. It is very much hoped that guidance will be swiftly prepared by the Department of Health and Social Care to aid families, practitioners and care professionals in applying the new approach set down, and that further judicial guidance will be available once these issues start to be considered through litigation in the Court of Protection.

It is also important to be clear about what the judgment does and does not do. The judgment changes the legal test for deciding whether a person’s care arrangements, and the restrictions within those arrangements, amount to a deprivation of their liberty for Article 5 purposes. It does not change what care the person needs. It does not remove the need for proper mental capacity assessments, best interests decision-making, consultation, care planning, safeguarding, or consideration of the least restrictive option. Decisions must still be taken in accordance with the Mental Capacity Act 2005. Where local authorities are involved, care assessment and planning must also comply with applicable duties under the Care Act 2014. Care providers, NHS bodies, and public authorities must still act lawfully, proportionately, and in a person-centred way.

Many family members and carers are concerned that the judgment will remove important safeguards for vulnerable adults. That is an understandable concern. Fewer arrangements will be treated as a deprivation of a person’s liberty, particularly because, even if the arrangements objectively amount to a deprivation, the person may be seen to have validly consented to the arrangements. As a result, fewer people will have access to the additional procedural protections which are triggered by Article 5, including formal authorisation, independent scrutiny and, in some cases, non-means-tested legal aid to instruct a legal representative. There is also a risk of less structured scrutiny and review of care planning and restrictions for those individuals and a risk of varying approaches nationally by different public bodies.

Advocates will have an increasingly important role. In many cases, advocacy may still be needed under the Mental Capacity Act 2005, the Care Act 2014, safeguarding processes, complaints procedures, or Court of Protection proceedings. Advocates will be important in helping ensure that the person’s voice is not lost simply because the Article 5 threshold is no longer met.

Finally, it is unclear what the impact of this judgment will be on the future and intended scope of the long-awaited Liberty Protection Safeguards (LPS), or on the timeline for the amendments to the Mental Capacity Act code of practice.

What should clients do now?

For now, families, deputies, attorneys, advocates, care professionals and public bodies should:

• keep alert for any new guidance from the Department of Health and Social Care and any relevant judgments from the Court of Protection;
• consider whether the authorisation should be reviewed in appropriate cases involving individuals who are currently subject to a deprivation of liberty authorisation, including whether they remain deprived of their liberty;
• not assume that the care being provided to a person needs to change simply because of this judgment. The judgment changes the legal test for whether the restrictions arising from that care amount to a deprivation of liberty, and whether the person therefore has the benefit of additional Article 5 safeguards. It does not change the person’s underlying care needs;
• ensure that even where, under the new test, care does not result in a deprivation of the person’s liberty, any restrictions arising from that care are necessary, proportionate, properly recorded, and consistent with the person’s assessed needs and best interests;
• understand the person’s rights and the duties owed to them under the Mental Capacity Act 2005 and, where applicable, the Care Act 2014. That will be particularly important while the practical consequences of the judgment are worked through and guidance is updated;
• take particular care, when considering whether a person is consenting to care arrangements which would otherwise amount to a deprivation of their liberty, where the person is being treated with medication that has a sedative effect; has become institutionalised; may be subject to coercive control; or is fearful of saying what they really feel. Also, silence, compliance, or communication difficulty should not themselves be treated as evidence of valid consent;
• consider whether any safeguards or support previously provided through the deprivation of liberty authorisation process remain necessary and, if so, whether they can be secured through another route, particularly advocacy, independent review, or representation;
• seek to resolve disputes about a person’s welfare with the relevant public bodies and, if they cannot be resolved, escalate any such disputes to the Court of Protection.

Families, carers, deputies, attorneys, advocates, care providers, and public bodies should seek expert legal advice if they are concerned about the approach being taken to care provision, including where there is a dispute about whether the restrictions arising from that care amount to a deprivation of liberty.

If you have any questions on deprivation of liberty or related matters, please contact Zena Bolwig.