Guest post by Grace Barnes, PhD candidate, Centre for Disability Law and Policy at the University of Galway
In June 2026 the UK Supreme Court decided that the Minister of Health for Northern Ireland had the power to revise the Deprivation of Liberty Safeguards Code of Practice which required certain types of confinement to be formally authorised. The Revised Code explains that people who lack capacity to make decisions about their care and treatment can give valid consent to their confinement through the expression of their ‘wishes and feelings’. In cases where an individual is considered to have given ‘valid consent’, they will not be treated as deprived of their liberty and their confinement will not require authorisation.
On 26 August, one of the first judgments of the Court of Protection since the Supreme Court’s decision was produced in the case of Re AR (Whether restrictions amount to a deprivation of liberty) [2026] EWCOP 45 (T2). HHJ Burrows decided that ‘AR’, a 25-year-old man who is described and as living in a ‘placement’, had not been deprived of his liberty despite being subject to substantial control characterised by locked doors, CCTV and one-to-one 24-hour supervision (para 52).
UK Supreme Court’s Decision
The UK Supreme Court found that the Minister of Health for Northern Ireland had the power under the Mental Capacity Act (Northen Ireland) 2016 to revise the Deprivation of Liberty Safeguards Code of Practice, which concerns the confinement of persons age 16 and over for the purposes of care and treatment. This Code most significantly affects people with intellectual and/or psychosocial disabilities who are confined in community settings including residential and care homes.
The Court had to decide whether the Minister’s Revised Code was compatible with the European Convention on Human Rights because it guides decision-makers in their discretion under public law. The Court therefore reviewed the Revised Code in light of the Strasbourg jurisprudence in relation to Article 5:
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; … (Article 5, ECHR)
Further, for any proposed changes to take effect, the Court would have to depart from its decision from 2014 in the case of Cheshire West. The Court therefore analysed the Strasbourg jurisprudence in light of the ‘correctness’ of Cheshire West.
Overruling Cheshire West
In the case of Cheshire West, the UK Supreme Court established what has come to be known as the ‘acid test’ whereby someone is considered to be deprived of their liberty if they are under ‘continuous supervision and control’ and they are ‘not free to leave’ (paras 48 and 49).
This created a strict approach to determining that someone has been deprived of their liberty. Baroness Hale articulated that ‘a gilded cage is still a cage’ and explained that irrelevant factors to the decision included how ‘comfortable’ the arrangements were and how ‘enjoyable’ someone’s life may be (para 46).
In assessing the acid test against the Strasbourg law, the Supreme Court concluded that it was incorrect. The Court gave several reasons for this conclusion:
- The acid test is too crude and ignores many potentially relevant factors, which leads to an over-extensive interpretation of deprivation of liberty (para 185).
- It was wrong to conclude that a ‘person’s compliance or lack of objection’ is never legally relevant to the question of objective confinement (para 187).
- The acid test takes no account of the type of setting where an individual receives care and treatment (para 193).
- The acid test takes no account of the ‘innate limitations’ to which an individual may be subject by reason of ‘their own physical or mental condition’ (para 195).
- It was wrong to discount the potential relevance of the purpose of confinement (para 200).
- It is incorrect to equate lack of legal capacity with lack of valid consent. A person may not have legal capacity to make decisions, but they may still be able to give valid consent through expression of their wishes and feelings (para 201).
In concluding that the decision in Cheshire West was wrong, the Court found that a significant number of people who are confined are not actually ‘deprived of their liberty’ within the meaning of the European Convention, and therefore that far fewer people should be entitled to corresponding safeguards.
Weaponisation of ‘wishes and feelings’
The Court decided that the decision in Cheshire West created too low a bar for determining that someone has been deprived of their liberty. The Court’s particular concern appeared to be that it did not allow for consideration of the views of the affected individual. The Court decided that an individual could in fact give valid consent to a living situation where they are not free to leave through the expression of their wishes and feelings.
The Revised Code (at Annex 1 of the judgment) explains how an individual’s ‘wishes and feelings’ can be understood:
[T]here must be evidence of a positive attitude to the care arrangements. For example, P could be regarded as consenting if he or she a) regularly says that they like where they live, b) or appears keen to return to their home after a trip away and in either case, there is no evidence of resistance or objection to the arrangements in place.(para 2.12)
Identifying an individual’s positive attitude may seem like a reasonable approach, but considering the context of this provision shows how it could operate negatively in practice. It is essential to note that paragraph 2.13 of the Revised Code explains that ‘[t]he responsibility lies with those who are confining P to be able to explain at all times how P can be regarded as consenting’. An independent assessment of an individual’s wishes and feelings may therefore not take place, since someone who is responsible for confining an individual may have a vested interest in the confinement. In light of this, it could be interpreted that the Revised Code will do very little to ensure the acknowledgment of the wishes and feelings of the person who is confined.
The Revised Code also fails to account for the structural barriers which people experience in this context. People with intellectual and psychosocial disabilities who are confined usually lack financial resources which means they have fewer options for alternative living arrangements, and this could shape how they appear to be consenting. They also experience discriminatory attitudes regarding their competence and needs which means they are more likely to be considered dependant on the arrangements and for any objection not to be overlooked.
The Court explained that the Cheshire West decision discounted the views of individuals and that there was ‘no good reason’ for this (para 135). However, it is not clear that the Revised Code would rectify this omission in practice.
In the case of Re AR, HHJ Burrows explained that positive ‘wishes and feelings’ include evidence of ‘contentment, acceptance or tacit consent’ (para 49). The wishes and feelings of AR were described by Ms P, a social worker. She described AR’s feelings as ‘mixed’ but recalled in particular his ‘attempts to access locked exits and his refusal to unpack a suitcase’ (para 53). Despite this testimony, HHJ Burrows found that he was not deprived of his liberty.
Administrative and resource considerations
Despite the Supreme Court’s reference to ‘wishes and feelings’, it is clear that significant attention was paid to the administrative and resources implications of the Cheshire West decision. The judgment references the number of applications which were submitted for formal authorisation of confinement after Cheshire West, and this is described as having had an overwhelming effect on administrative and judicial systems (paras 99-101).
An interpretation of this data founded in disability rights would identify that firstly, far too many individuals are currently deprived of their liberty in the United Kingdom; secondly, that this was flying under the radar prior to Cheshire West when fewer safeguards were required to authorise and review these deprivations; finally, that the administrative structures for authorisation have not been fit for purpose.
However, the Court instead used this data to justify reversing the decision of Cheshire West, to reduce the number of applications for formal authorisation and reduce the safeguards to which individuals were entitled.
This speaks to a neoliberal eugenic ideology where economic concerns which view disabled people as drains on society lead to policies which marginalise them, creating barriers to their interaction in communities (Russell, 2019). The outcome of the decision, as seen in the case of Re AR, will serve to keep marginalised people confined in residential and care settings. By not being recognised as deprived of their liberty, they will not be entitled to safeguards including that authorisation must be obtained, that a nominated person must be consulted to make sure the person’s views are heard, that the authorisation must be reviewed and that it can be challenged.
Conclusion
The Supreme Court explained that Cheshire West was decided ‘on the basis of a misplaced policy concern that safeguards in relation to vulnerable people have to be provided pursuant to article 5’ (para 185). By no longer requiring these safeguards to be provided, the Court has lessened the administrative and resource burden on the state but directly weakened the rights of marginalised people confined in community settings.
The decision appears to prioritise the self-determination and agency of disabled people through its reference to wishes and feelings. However, this is directly contradicted by the outcome of the case which removes the safeguards capable of protecting rights to liberty and security.
The recent case of Re AR highlights the weaponisation of this ‘wishes and feelings’ approach to justify as ‘consensual’ a situation of not being free to leave (i.e., coerced). Evidence of constant supervision and locked doors were insufficient to find a deprivation of liberty, AR’s wishes as expressed by his attempting to leave his placement were disregarded, and the decision was made on the basis of paternalism through considerations that AR’s confinement was ‘necessary to manage his behaviours’ and that he benefited from the ‘highly structured routine’ (para 61).
The UK Supreme Court has demonstrated a concern only to comply with the lowest possible standard of human rights protection required by the European Convention of Human Rights, which will significantly affect the lives of thousands of people with intellectual and psychosocial disabilities who experience confinement.
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