The Supreme Court has handed down judgment in The Attorney General for Northern Ireland’s Reference (Deprivation of Liberty) [2026] UKSC 16 - the most significant Court of Protection judgment in more than a decade.
Rebecca Handcock considers the ruling and what it means for anyone acting in a protected party’s interests, or for local authorities responsible for arranging a vulnerable person's care and residence.
Significance of the decision for Court of Protection lawyers
The case is fascinating from a constitutional standpoint alone: being unusual both as a reference in respect of proposed policy changes without a relevant factual matrix to consider, and a rare use of the 1966 Practice Direction in respect of departure from previous Supreme Court authority.
However, anyone involved in or concerned with the work of the Court of Protection will be far more interested in the substance of the decision, which has potentially far-reaching impacts for the question of whether someone is “deprived of their liberty”.
P v Cheshire West and Chester Council [2014] UKSC 19 wrongly decided
In AG for NI’s reference (Deprivation of Liberty), the 2026 composition of the Supreme Court set aside its 2014 majority decision in the case of Cheshire West.
It found that it had been wrong to conclude that the test for whether someone was subject to a deprivation of their liberty (such that lawful authorisation was required) could be determined by reference to a bright line 'acid test' that the person was 'subject to continuous supervision and control' and 'was not free to leave'.
The 2026 composition of the Supreme Court unanimously held that the majority of the Supreme Court in 2014 wrongly departed from the established jurisprudence of the Strasbourg court concerning whether someone is deprived of their liberty.
How should ‘deprivation of liberty’ be assessed?
The Strasbourg court jurisprudence requires a 'multifactorial approach' whereby a range of factors are potentially relevant, including the type of restrictions, the setting, the duration and effect of the restrictions, and the purpose for which they are implemented.
- The Supreme Court said the 'type' of setting is also a relevant factor, so someone in a family or home environment under conditions which closely resemble 'normal' life, with the addition of restrictions necessary to keep them safe, is less likely to be deprived of their liberty than someone who is in a setting which more closely resembles 'detention' in an archetypal sense (eg prison-like conditions).
- The court also held that 'liberty' in this context means 'physical liberty', such that someone who is incapable (due, for example, to catatonia, being in a minimally conscious state, or other physical or mental condition) of attempting to leave confinement is not thereby to be treated as being deprived of their liberty.
- Crucially, the court indicated that the 'acid test' may still be relevant as a necessary condition in determining whether there is a deprivation of liberty [184]. However, it is clear that it will no longer be a sufficient condition.
- An element of 'coercion' is also now to be seen as necessary [187].
[I]f an individual is able to, and does, express their wishes and preferences about their living arrangements, and is happy with them, it will ordinarily be difficult to see how they are being coerced. [189].
It follows that anyone who lacks (decision-specific) capacity to make decisions about arrangements for their care and residence, may nonetheless be able to validly consent to arrangements made on their behalf which might otherwise constitute a deprivation of their liberty.
The 7-member Supreme Court stated that:
[t]he argument that, because some adults will find it difficult to communicate and express views and feelings about their placement, the views of no adults should be capable of vouching consent creates an arbitrary threshold and may lead to unnecessary and intrusive interference with the private lives of those adults with impaired mental capacity who are able to express views and feelings [192].
Deprivation of liberty - where to now?
The precise implications of this judgment will take some time to become clear. But unquestionably, it will very significantly alter the Court of Protection’s work in authorising or reviewing arrangements which involve restrictions on someone’s liberty.
Central government is likely to publish guidance shortly, and no doubt there will be numerous 'test cases' on the horizon to determine precisely how this decision will be interpreted in practice.
It should be said that the ruling is controversial, with disability rights charities (3 had intervener status in the case) calling it 'the biggest rollback of disability rights in a generation'.
There is no route to appeal this specific decision to the Strasbourg court (as there is no 'victim' with standing to bring such an appeal). However, it may not be long before impacted parties do seek to test the new framework in that forum.
In the immediate term, practitioners can expect the dialogue around existing and new cases to shift to include consideration of whether there is a deprivation of liberty at all (something about which, under Cheshire West, dispute was rare).