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Francis Lyons, Partner
The Supreme Court’s judgment in the case of The Attorney General for Northern Ireland [2026], handed down on 2 June, impacts hundreds of thousands of people whose care packages will likely no longer require authorisation under the Deprivation of Liberty Safeguards (DOLS) or the Court of Protection’s “Re X” / COPDOL11 procedure.
In overturning the “Cheshire West” decision, the Supreme Court ruled that:
· The two strands of the Acid Test (constant supervision and control, combined with a lack of freedom to leave) were not determinative of whether there was a deprivation of liberty (DoL)
· The purpose and relative normality of any package of care are now relevant to determining whether there was a DoL, as part of a multi-factorial assessment
· Service users can lack mental capacity to decide where to live for the purpose of receiving care services, but can still give valid consent to the arrangements, avoiding the need for a DoL authorisation. Service users’ consent can be expressly stated by them or construed by public authorities from their behaviour.
In assessing the position of “MEG”, the Supreme Court ruled that MEG was not in fact deprived of her liberty even though there was:
· One-to-one support around the clock with some two-to-one support;
· Physical restraint to manage her challenging behaviour towards other residents; and
· Tranquilising medication to control her anxiety.
The Supreme Court also determined that although MEG had mild learning disabilities and limited cognitive ability, she had given a “tacit positive indication of wishes and feelings showing contentment with the arrangements”, which amounted to valid consent.
The Supreme Court also looked at other categories of patients such as those in hospital for active treatment as well as those with persistent disorders of consciousness.
From now on, there will potentially be less scope for individuals to raise challenges, because those affected will no longer have access to:
· A Relevant Person’s Representative (RPR);
· A Rule 1.2 Representative; or
· Non-means tested legal aid for those under DOLS.
This raises important questions: without advocates and without Court or Supervisory Body oversight, how are public authorities going to ensure proactively that service users’ packages of care are the least restrictive and in their best interests? How will professionals make lawful best interests’ and commissioning decisions?
All public bodies must overhaul their current processes and documentation, combined with training for front-line staff to ensure all relevant professionals have a proper understanding of:
a) the new multi-factorial DoL assessment, including “purpose”, “normality” and the service users’ views on the arrangements;
b) the DHSC and ADASS guidance on the judgment and steps to be taken by public authorities in response to the judgment; in addition to
c) the long-standing principles of best interest decision making under the MCA; and
d) the continued role of the Court to determine disputes on issues such as contact and placement, even if there is no DoL.
Documentation must also be updated to ensure:
a) Policies require regular reviews, under which the relevant factors are considered with supporting guidance for professionals;
b) Assessment and review forms to support professionals’ assessment of individuals’ needs and circumstances so that appropriate services are arranged and that restrictions and disputes are identified and considered at appropriate stages;
c) Proper consideration is given to the service user’s past and present wishes in order to identify whether there is a valid consent of the arrangements and arrange services that match what the individual wants as closely as possible, bearing in mind the resources actually available.
If you have any queries about how the Supreme Court decision will affect your organisation or require support with any of the points raised on next steps, including training or documentation, please contact Head of Capsticks’ Court of Protection and Mental Health teams, Francis Lyons.
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