By Tilly Baden, 19th October 2025
Note: On 20-22 October 2025, the UK Supreme Court will be asked to re-visit the question of how to understand a deprivation of liberty. This is our fourth in a series of blogs about the case. The others are:
Reconsidering Cheshire West in the Supreme Court: Is a gilded cage still a cage? by Daniel Clark
Cheshire West Revisited by Lucy Series.
Reform, not rollback: Reflections from a social worker and former DOLS lead on the upcoming Supreme Court case about deprivation of liberty by Claire Webster
This blog is re-printed, with permission, from Social Work News.
If there were ever a week for social workers to have their popcorn ready and their legislation manuals open, it’s this one. On Monday 20th to Wednesday 22nd October, the UK Supreme Court is gearing up to hear a case that could redraw the map of human rights protections for people deprived of their liberty, and I, for one, am terrified.
For those who haven’t been following: next week, the Justices will consider whether the Cheshire West “acid test” still holds water. That’s the 2014 ruling, led by the absolute icon Lady Hale (who remains, in my view, the closest thing the legal world has to a rockstar), which decided that people who are under continuous supervision and not free to leave are indeed deprived of their liberty, even if they seem content or unaware of it.
Why does that matter? Because this principle has protected thousands of disabled and older people across the UK from being warehoused behind locked doors without scrutiny. It gave them ** finally ** a legal right of appeal.
Now, that definition is under challenge.
The government argues that it goes too far, is too resource-heavy, and captures too many people in ordinary care settings.
Full disclosure and in the spirit of transparent use of AI (something that we need to be accountable for as we move closer into a world where AI dominates our lives), I’ve used ChatGPT to help me process the background data and work out the “odds” of which way this one might go. And while I’m no statistician (and certainly not a bookmaker), consider this your slightly irreverent pre-match analysis – legal punditry meets Ladbrokes.
The Line-Up: The Seven on the Bench
The panel reads like a Who’s Who of the UK’s judicial heavyweights:
Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lord Sales, Lord Stephens, Lady Rose, and Lady Simler.
It’s a well-balanced bench – part cerebral, part cautious, part iconoclastic. But the million-pound question (and I use that figure deliberately, given the DoLS bureaucracy costs) is: who’s most likely to back the spirit of Lady Hale, and who’s poised to prune it back?
The Odds (Purely metaphorical… please don’t report me to the Gambling Commission)
2/1 – Moderate Modification / “Clarify but Keep Core” (Favourite)
Picture Lord Reed at the helm, charting a middle course. The acid test stays, but gains a few qualifiers – more nuance around consent, context, and those “benign” care settings that don’t really feel coercive. Lord Lloyd-Jones and Lady Rose are likely to support him, with Lord Hodge and Lord Sales tidying up the doctrinal edges. Lady Simler may grumble into her dissent, but the ship sails on mostly intact.
Odds-on summary: Keep Cheshire West, but polish the edges and call it a “modernisation.”
4/1 – Status Quo / “If it ain’t broke, don’t fix it”
This is the pure-blood Hale loyalist position: the bright-line stays. The magic equation:
Continuous supervision + continuous control + not free to leave = deprivation of liberty.
Full stop. The rights of disabled people don’t hinge on compliance or comfort, or in Lady Hale’s words: “A gilded cage is still a cage.” Lloyd-Jones and Rose are most likely to fight this corner, with Reed perhaps persuaded to err on the side of institutional stability.
Odds-on summary: Hold the line. Protect the principle. Tell the government to sort the funding out instead of tinkering with human rights.
10/1 – Major Retrenchment / “Back to Bournewood”
The outsiders’ bet: A significant rewriting or even reversal of Cheshire West. That would mean a new, multi-factor approach where supervision, control, and freedom to leave are necessary but not decisive. The focus would shift to coercion and intention. The minority camp would likely include Lady Simler (who has shown a fondness for literalism) and possibly Lord Sales, ever the doctrinal reformer.
If this happens, pour yourself a stiff drink.
Odds-on summary: Fewer DoLS authorisations, fewer rights safeguards, and a lot more people quietly locked away without recourse. Let’s hope not.
The Form Guide
Lord Reed (President): Institutionalist. Thinks in paragraphs, not polemics. Likes incremental change.
Lord Hodge (Deputy): Dissented in Cheshire West back in 2014 — so keep an eye on him for a possible swing toward narrowing the test.
Lord Lloyd-Jones: The court’s international law conscience. Most likely to invoke Strasbourg and hold the rights line.
Lord Sales: The bookie’s wildcard. Loves a doctrinal overhaul, so if anyone’s drafting a shiny new test, it’s him.
Lord Stephens: Pragmatic and softly spoken; will likely drift toward the Reed/Hodge centre.
Lady Rose: Calm, balanced, but quietly fierce when human rights are at stake. One to watch for a dignified defence of Hale’s principle.
Lady Simler: Literal, precise, and occasionally allergic to interpretive generosity — might be the voice calling to rein it all back.
My Money’s On…
A 5-2 split in favour of a “moderate modification.” Cheshire West will survive, but slimmed down and dressed for modern sensibilities. Expect a paragraph that begins with “While the acid test remains good law…” and ends with “…context must always be considered.”
If that happens, we’ll keep the bones of Lady Hale’s legacy, but the marrow will feel thinner.
Final Thoughts: Dear Justices…
Now, I know it’s wildly unlikely that any of the Supreme Court judges are reading this, but just in case one of you has a secret fondness for Social Work News and your clerks let you scroll during tea breaks, please, hear this plea from the front lines.
Remember the case of HL at Bournewood. He was a real man who suffered horrors during his confinement. Remember why Lady Hale fought so hard to ensure that people who can’t speak for themselves still have a voice. Don’t leave objections to be triaged by care homes and overworked local authorities. Don’t normalise confinement just because it’s convenient. The role of the independent assessor exists precisely to bring a fresh pair of eyes; to test, to question, to protect.
We know resources are tight. We know systems are broken. But when resources dictate rights, we lose the soul of social work and the humanity of our society.
So, dear Justices, place your legal bets wisely. The odds may change, but the stakes couldn’t be higher.
Tilly Baden is an experienced Adult Social Care Manager, writer, and podcaster. You can read her other articles on Social Work News.
Promoting Open Justice in the Court of Protection 
Thank you for this. I hope at least one of the judges does read this and listen to what is written at the end. Lives are stolen. Supported living is no longer supported in most places – it simply is the cage, not even gilded in most places.
LikeLike