The Supreme Court’s decision to overrule Cheshire West represents one of the most significant developments in mental capacity and deprivation of liberty law for more than a decade.
In a single judgment, the court has overturned legal principles that have shaped practice across health and social care since 2014, redrawn the relationship between capacity and valid consent, and introduced a new approach to determining whether someone is deprived of their liberty under article 5(1) of the European Convention on Human Rights.
The implications extend far beyond legal theory. From Mental Health Act detention and tribunal reviews to community restrictions, deprivation of liberty authorisations and everyday clinical decision-making, organisations across the sector are now beginning to grapple with what this change means in practice.
For many professionals working across mental health, however, the more pressing question is not what the judgment says. It is what the judgment means for the decisions they are making today.
Dr Debbie Martin, mental health law expert and member of the Thalamos Responsible Innovation Group, believes the significance of the ruling lies not simply in the fact that Cheshire West has been overruled, but in the breadth of its impact.
“What is so significant about this decision is that the court has gone beyond what they were asked to do,” she explained. “The judgment is far greater reaching than we anticipated it would be.”
The court was initially asked to consider questions relating to consent. Instead, it revisited both consent and confinement, overturning legal principles that have shaped deprivation of liberty practice for more than a decade.
The result is that individuals and organisations are now having to reconsider knowledge that has underpinned day-to-day practice since 2014.
The law has changed immediately
One of the most important points to understand is that this is not a future reform. There is no implementation period or transition programme or commencement date. The law changed when the judgment was handed down.
That does not mean organisations should rush to redesign policies overnight. It does mean that decisions being made today are being made in a different legal landscape from the one that existed a week ago.
Relationship between capacity and consent redrawn
One of the most significant parts of the Supreme Court judgment appears in paragraph 201.
The Supreme Court states:
“A person may not have mental capacity to make decisions about their care and residence arrangements, but if they have a basic level of awareness and consciousness of their living arrangements that is sufficient to enable them to know and communicate whether they are happy or unhappy with them, they may be treated as able to give or withhold valid consent to confinement by an expression of their wishes and feelings.”
For many practitioners, that represents a substantial shift from domestic law.
The court goes on to say that valid consent for Article 5 purposes is “separate from and not tied to the question of legal capacity in a domestic law context”. Instead, it is concerned with a person’s understanding of their situation and how they experience it.
In practical terms, the assumption that a lack of capacity automatically prevents valid consent can no longer be relied upon in the way it has been since Cheshire West.
The implications are only beginning to emerge
Whilst the legal position has changed, many of the practical consequences are only now being worked through.
For Martin, one of the first questions concerns people who are already subject to legal frameworks built around the previous understanding of deprivation of liberty.
Existing Court of Protection personal welfare orders, deprivation of liberty safeguards authorisations, Mental Health Act detention and restrictions attached to community arrangements may all be viewed differently following the judgment.
“There will be a big question mark now,” she said. “Do we need to review the need for these arrangements now?”
The same questions may arise within broader Mental Health Act processes. Hospital managers, responsible clinicians and tribunals may all find themselves considering whether arrangements that previously required formal procedures to authorise detention continue to require those safeguards.
The point is not that there is a clear answer. The point is that these questions now exist where previously many people assumed they had already been settled.
Today’s assessments may look different
Alongside questions about existing arrangements are questions about future practice.
AMHPs, doctors and clinicians carrying out assessments today are not dealing with a theoretical future problem. They are already making decisions within a new legal framework.
That may affect how professionals think about a wide range of situations, including informal admission under the Mental Health Act, community restrictions such as guardianship, community treatment orders and conditional discharge, and circumstances where people remain in places of safety or hospital settings while waiting for an appropriate bed.
Martin expects attention to shift away from some of the concepts that have dominated practice since Cheshire West, for example, “a gilded cage is still a cage”. “Our focus, I think, will switch to concepts of coercion and objection, factors more akin to the paradigm of confinement in a cell, when trying to establish deprivation of liberty.”
That shift may prove significant. The Supreme Court was clear that compliance, lack of objection, the wider context of a person’s circumstances, the relative normality of the placement and purpose are all relevant factors when assessing deprivation of liberty, rejecting the idea that the Cheshire West acid test alone is sufficient to determine whether Article 5 is engaged.
The next challenge may be evidencing decisions
Perhaps the most important operational consequence of the judgment is not about legal definitions, it is about evidence.
Under Cheshire West, much of the focus centred on whether the acid test had been met. The new judgment places far greater emphasis on understanding a person’s wishes, feelings, experience of their circumstances and the presence or absence of coercion and objection.
As individuals and organisations begin applying the judgment, documentation of decision-making is likely to become increasingly important. Addressing key questions, for example:
First, confinement:
- What is the type, duration, effects and manner of implementation of the measures?
- What is the relative normality of the placement?
- What is the purpose of the measure?
Second:
- Is the person conscious of their environment and has a basic understanding of their living circumstances?
- Can they express their view about their situation?
- Is the person compliant/content and lacking objection?
- What are their wishes and feelings?
Martin believes this may place greater emphasis on robust Mental Capacity Act decision-making and recording, to carry out care and treatment falling short of deprivation of liberty.
What happens now?
The Supreme Court has provided a new legal framework. What it has not provided is detailed operational guidance for every scenario practitioners encounter.
Professional bodies such as the Law Society are likely to respond. Guidance may emerge and future cases will inevitably help clarify some of the questions that organisations are now grappling with.
Until then, health and social care organisations are likely to find themselves re-examining knowledge that has shaped practice for more than a decade.
The legal debate about Cheshire West may now be over, but the practical debate is only just beginning.
Additional resources on Cheshire West overruling:
- Detailed recorded webinar explanation by 39 Essex Chambers
- 5-minute YouTube explainer by barrister Dr Oliver Lewis from Doughty Street Chambers
- Written summary from Tim Spencer-Lane, a lawyer specialising in adult social care, mental capacity and mental health
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