header-logo header-logo

03 June 2026
Categories: Legal News , Mental health , Court of Protection , Human rights
printer mail-detail

Cheshire West test overruled

Mental health charities have reacted with alarm after Cheshire West, which established an ‘acid test’ for deprivation of liberty safeguards, was overturned by the Supreme Court

Until Surrey County Council v P; Cheshire West and Chester Council v P [2014] UKSC 19, people who lacked mental capacity and lived in restrictive settings could be legally deprived of their liberty under Art 5 of the European Convention on Human Rights. The 2014 decision set legal safeguards, requiring either review by a judge or an independent assessor to ensure the person’s placement in a care home, locked unit or other living arrangement was safe, justified and in the person’s best interests. After Cheshire West, approximately 400,000 persons ‘of unsound mind’ were treated as being deprived of liberty in England and Wales per year.

In a unanimous ruling this week, however, Lord Sales and Lady Simler said: ‘In setting out the acid test, the majority decision in Cheshire West departed from the longstanding multifactorial approach to determining whether a person is deprived of liberty within the meaning of Article 5 and is wrong.’

According to 11KBW, chambers of Joanne Clement KC and Zoe Gannon, who acted for intervenors the Secretary of State for Health and Social Care, the court held a whole range of factors must be taken into account, including the type, duration, effect and manner of implementation of the measure in question.

The case, 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, centred on whether a code of practice accurately stated the law on consent to confinement.

However, charities Mencap, Mind and the National Autistic Society said: ‘Stripping away these safeguards makes it easier for abuse and neglect to go unnoticed behind closed doors. A litany of previous wrongdoings demonstrate how closed cultures, lack of independent oversight and restrictive care can lead to abuse scandals and decisions like this fly in the face of everything we've learnt.’ They said safeguards would now no longer apply if social workers considered the restrictions ‘normal’ or the person showed a positive attitude about their placement.

MOVERS & SHAKERS

Gateley Legal—Jack Kelly

Gateley Legal—Jack Kelly

Gateley Legal expands Midlands residential development team

Gibson Dunn—Richard Surtees

Gibson Dunn—Richard Surtees

Gibson Dunn adds employee benefits and executive compensation practice in London with partner Richard Surtees

Laytons ETL—Alec Cameron

Laytons ETL—Alec Cameron

Laytons ETL appoints new partner and head of intellectual property disputes

NEWS
A series of recent decisions has clarified important principles across property law, from perpetuities to lease renewals and public rights over land
Employers cannot rely on wellbeing services alone to defend workplace stress claims after a High Court decision awarding almost £1m to an overworked employee
Andy Burnham's brand of 'Manchesterism' could offer fresh thinking on legal aid and access to justice if it reaches Westminster, according to Roger Smith, NLJ columnist and former director of JUSTICE
The constitutional fallout from a change of prime minister, rather than the politics, is under scrutiny as questions arise over the limits of executive authority in a leadership transition
The legal profession is undergoing a fundamental shift from selling services to creating technology-enabled products, according to Professor Luke Mason, Head of School of Law at Regent's University London
back-to-top-scroll