A Reference by the Attorney General for Northern Ireland of a Devolution Issue [2026] UKSC 16

Why It Matters

The decision reshapes how care providers assess liberty restrictions, curbing costly safeguards while strengthening the rights and dignity of adults with mental impairments.

Key Takeaways

• Supreme Court overturns Cheshire West’s broad deprivation‑of‑liberty test.
• Valid consent by impaired adults can negate Article 5 deprivation.
• Minister’s new code of practice deemed compatible with ECHR Article 5.
• Court emphasizes objective‑subjective analysis over simple “continuous supervision” test.
• Ruling aims to reduce costly safeguards and protect dignity of care recipients.

Summary

The UK Supreme Court, sitting on a reference from the Attorney General for Northern Ireland, reconsidered whether adults with impaired mental capacity confined in care settings suffer a deprivation of liberty under Article 5 of the European Convention on Human Rights. The Court rejected the expansive “continuous supervision and control” test set out in the 2014 Cheshire West decision and reinstated a nuanced, objective‑subjective analysis rooted in Strasbourg jurisprudence.

Key to the judgment is the recognition that valid consent—assessed on the individual’s day‑to‑day awareness and expressed wishes—can preclude a finding of deprivation, even where domestic law deems the person lacks full capacity. The Court also clarified that confinement aimed at safety, resembling normal living conditions, is more likely a restriction of movement than a deprivation of liberty. Accordingly, the minister’s proposed code of practice, which adopts a narrower definition of deprivation and a broader view of consent, complies with Article 5.

The judgment cites the European Court’s guidance, dismissing the “acid test” of continuous supervision as overly simplistic. It stresses comparing care settings with the paradigm of prison detention and weighing the purpose of confinement. The Court underscored that consent must be carefully assessed, and in cases of doubt, the presumption should be lack of consent, preserving dignity and respect for vulnerable adults.

By overturning Cheshire West, the ruling promises significant resource savings for health and social‑care services, reduces procedural burdens on professionals, and provides clearer legal certainty for policymakers. It also reinforces the human‑rights‑compatible approach that respects the autonomy of individuals with impaired capacity while ensuring appropriate safeguards.

Original Description

A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998

https://www.supremecourt.uk/cases/uksc-2025-0042.html

Case ID: UKSC/2025/0042

Judgment date: 2 June 2026

Neutral citation: [2026] UKSC 16

Issue:

Does the Minister of Health for Northern Ireland have the power to revise the Deprivation of Liberty Safeguards Code of Practice (“the Code”) so that persons aged 16 and over 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?

Facts:

The Code is issued under the Mental Capacity Act (Northern Ireland) 2016. It details the process and criteria for authorising the deprivation of a person’s liberty in order to provide them with care and treatment when they lack the mental capacity to consent. At present, the Code requires that the confinement of persons aged 16 and over for the purposes of care and treatment is formally authorised. The Minister intends to revise the Code so that these persons can give valid consent to their confinement, even though they lack capacity, through the expression of their wishes and feelings.

The Northern Ireland Act 1998 limits the Minister’s powers so that the proposed revision to the Code will only be lawful if it is compatible with the rights protected by the European Convention on Human Rights (“ECHR”). These include the right to physical liberty guaranteed by article 5.

The Attorney General for Northern Ireland considers that the proposed revision to the Code is compatible with the ECHR because it would take persons who lack capacity but consent to their confinement through the expression of their wishes and feelings outside of the scope of article 5. However, the proposed revision would take a different approach to consent to that taken by the Supreme Court in P v Cheshire West and Chester Council and another [2014] UKSC 19. In Cheshire West, the Supreme Court held that article 5 applies to persons who cannot consent to their confinement because they lack mental capacity. This is the case even where the person who lacks capacity indicates that they are content with the arrangements for their care and treatment.

In light of this, the Attorney General asks the Supreme Court to confirm that the proposed revision to the Code is compatible with article 5 ECHR and, therefore, within the Minister’s powers.

Judgment:

The Supreme Court unanimously holds that the Minister would not be acting incompatibly with article 5 of the Convention in issuing the revised code, and that it is therefore within his competence to issue the revised code.

Lord Sales and Lady Simler give the judgment, with which Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lord Stephens and Lady Rose agree.

More information is available on our website: UKSC 2025/0042