The UK Supreme Court has overturned the Cheshire West approach to deprivation of liberty for people deemed to lack the capacity to consent to their care and living arrangements.

In 2014, the P v Cheshire West and Chester Council & Anor [2014] UKSC 19 (‘Cheshire West’) ruling established that if a person is subject to ‘continuous supervision and control’ and ‘not free to leave’ then they are considered to be deprived of their liberty with respect to Article 5 of the European Convention on Human Rights (EHRC). This was known as the ‘acid test’.

The Supreme Court’s decision in Reference by the Attorney General for Northern Ireland [2026] UKSC 16 changes that approach. The Court held that the ‘acid test’ was too broad and that deprivation of liberty requires a more fact-specific, ‘multifactorial assessment’ of a person’s actual situation.  This should include detailed consideration of the degree, nature and duration of confinement, how the person feels about restriction, relative ‘normality’ of the situation and its purpose.

Critically, the Supreme Court ruled that a person may be able to give ‘valid consent’ to restrictive living arrangements even if they are deemed to lack legal decision-making capacity. The Court has drawn a distinction between domestic legal capacity and the Article 5 concept of valid consent. But this must be handled carefully. Silence, distress, or a lack of clear objection should not be treated as consent. If there is doubt about what the person wants, feels or understands, then consent should not be assumed.

Although the case arose in Northern Ireland, it is a UK Supreme Court interpretation of Article 5 ECHR and will have significant implications across the UK, including in Scotland. Scottish courts, public authorities, health and social care bodies and providers will now need to consider the new approach rather than relying solely on the Cheshire West acid test.

This matters particularly in Scotland, because unlike other parts of the UK, Scotland has never implemented a comprehensive deprivation of liberty safeguards framework as part of the Adults with Incapacity Act. This has been repeatedly criticised by courts, the Mental Welfare Commission and the Scottish Mental Health Law Review.

This judgment, therefore, raises important questions about how we ensure that people with learning disabilities in Scotland are supported to exercise their rights under the principles of the Adults with Incapacity legislation, supported decision-making, EHCR, the Convention of the Rights of Persons with Disabilities (CRPD), and the wider human rights framework.

For SCLD, the question is not only where the legal threshold for deprivation of liberty now sits. The central issue is whether people with learning disabilities have the support, advocacy, safeguards and independent scrutiny they need when decisions are made about where they live, the care they receive, and any restrictions placed upon them.

As the implication of this judgment become clearer, the focus must remain on people’s rights in practice. People with learning disabilities must have access to meaningful support to understand their options, express their wishes and feelings, communicate consent or objection, and challenge decisions where necessary. That support must be accessible, independent and properly resourced. It must also recognise that communication takes many forms and that people may express distress, disagreement, preference or consent in ways which services must take time to understand. People with learning disabilities who face particular communication barriers need to be able to access support from families and carers who know them best. And this may involve a ‘best interpretation’ of their will and preference in line with CRPD General Comment No 1.

The judgment does not provide a complete human rights framework. It does not undertake a detailed analysis of the CRPD and it does not itself create the procedural safeguards needed to ensure supported decision-making in practice. However, the distinction it draws between legal capacity and a person’s actual wishes and feelings may provide an opportunity for Scotland to move towards a rights-based model and closer alignment with the CRPD, if it is accompanied by strong safeguards, independent advocacy, supported decision-making and effective routes to review and challenge.

That opportunity must not result in reduced access to scrutiny for people with learning disabilities. Their rights must be protected even when they do not object loudly, or face barriers due to the use formal legal language or having to navigate complex systems. Any restrictions on liberty, choice and control must always be justified, proportionate, regularly reviewed and open to challenge.

The prospect of mental health and capacity law reform and a Human Rights Bill in Scotland provides an opportunity for a new legal framework which is more aligned with the ECHR, the CRPD, and the wider human rights framework to provide the necessary scrutiny, safeguards and supported decision-making structures for people with learning disabilities.

Since July 2024 children in Scotland have benefitted from the legal protections provided by the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024. It is essential that the wider rights framework is also incorporated into domestic law, so that all people with learning disabilities can benefit from comprehensive, enforceable protection of their rights.

Moving forward, SCLD believes that the response to the Supreme Court judgment should be guided by the experiences of people with learning disabilities and their families. The key question is not simply where the legal threshold for deprivation of liberty sits but whether people continue to receive the protections, support and independent scrutiny they need to live safe, fulfilling lives with dignity, choice and control.

We are committed to working alongside people with learning disabilities, families, self-advocacy organisations and partners to ensure that any future changes protect and strengthen, people’s rights and safeguards and access to independent scrutiny.

Easy Read Version

Audio Version