A summary of the arguments heard by the Supreme Court

By Daniel Clark, 21st October 2025

On 20-22 October 2025, the UK Supreme Court heard argument about how to understand a deprivation of liberty. This blog is a summary of the oral arguments that the court has heard. It was originally published on 21 October 2025, and updated on 24 October 2025 with a summary of the arguments heard on Day 3. To watch the recording, follow this link: https://supremecourt.uk/cases/uksc-2025-0042 To turn on closed captioning on these recordings press the “CC” button on the bottom right of the screen.

We have so far published five blogs about this case, the links to which are reproduced below in order of publication:
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 
Place Your Bets: The Supreme Court vs The Spirit of Cheshire West by Tilly Baden
Cheshire West returns to the Supreme Court: The position of the parties by Daniel Clark

Day 1, 20 October 2025

Attorney General for Northern Ireland

The Supreme Court heard submissions from Tony McGleenan KC , on behalf of the Attorney General for Northern Ireland. In the morning, this mostly consisted of a detailed exploration of the Strasbourg jurisprudence, which the Attorney General thinks demonstrates that someone can give valid consent. In the afternoon, the submissions mostly consisted of a close reading of the judgment in Cheshire West. The Attorney General is of the view that, in Cheshire West, the Supreme Court fell into error by not giving weight to the subjective element.

The justices repeatedly returned to the issue of whether somebody who is unable to leave (such as somebody in a Permanent Vegetative State or with advanced dementia) is deprived of their liberty. They asked whether there’s anything in the Strasbourg jurisprudence that says somebody in those circumstances is deprived of their liberty. The justices also expressed a need to hear more about what the procedure will be to ascertain a persons’ wishes and feelings, as well as what will happen if a relative or friend disagrees with the opinion that a person is consenting. This issue will be returned to in the Attorney General’s response (which will be at the end of Day 3). 

Finally, there was discussion of whether this reference engages the 1966 Practice Statement. This was a statement made in the House of Lords that stated “too rigid adherence to precedent may lead to injustice and also unduly restrict the proper development of the law”. The result is that the Supreme Court can depart from a previous decision when it seems right to do so. 

In the final twenty minutes, the Lord Advocate began her submissions (from 1.40.52 of the recording). This was mostly a summary of the submissions she will make on Day 2.

Day 2, 21 October 2025

Lord Advocate

In the morning session, the court heard submissions from the Lord Advocate, the Rt Hon Dorothy Bain KC. These submissions oscillated between a consideration of the first instance judgment in Cheshire West, and the wider matrix of Strasbourg jurisprudence. It is the position of the Lord Advocate that the Supreme Court does not need to depart from the decision in Cheshire West. Rather, the court should clarify the position that it is appropriate for a person’s wishes and feelings to be taken into account. However, that should happen after an evaluation of the objective element. The Lord Advocate argues that the question of wishes and feelings is separate from the question of whether somebody is confined. The evaluation of confinement must come first.

Secretary of State for Health and Social Care (from 1.42.53 of the morning session recording)

Before the lunch break, and for an hour after, Joanne Clement KC made submissions on behalf of the Secretary of State for Health and Social Care. These submissions were focused on the argument that the consideration of wishes and feelings is relevant to the objective element. She also submitted that Cheshire West was wrongly decided because the Strasbourg Court has never adopted an acid test. The Strasbourg court does give specific regard to the context and circumstances of restrictions – their degree and intensity. The acid test does not accommodate such an assessment.

On behalf of the Secretary of State it was submitted that objective facts – whether a person has tried to leave, whether they have said they want to leave, whether they exhibit behaviour that shows they want to leave – are relevant to the question of whether someone if confined. This is separate from the issue of valid consent, which the Secretary of State submitted is a consideration under the subjective element.

The Supreme Court in Cheshire West also did not pay enough attention to a person’s “innate condition” meaning they cannot leave, such as a person in a Permanent Vegetative State, Minimally Conscious State, or with advanced dementia. In those cases, the state is not doing anything to confine somebody – the confinement is by reason of a person’s inability to leave.

The Secretary of State does consider this is a case that engages the 1966 practice statement because the assessment of the objective element in Cheshire West was “so clearly wrong”.

The charities (from 1.01.42 of the afternoon session recording)

In the final hour of the hearing, the court began to hear submissions made by Victoria Butler-Cole KC on behalf of three charities – MENCAP, Mind, and the National Autistic Society. The judges were encouraged to look beyond hypothethical examples, and consider actual examples (filed in evidence) of the restrictions that people do experience. Some of this is also referenced in the skeleton arguments filed on behalf of the charities.

The charities submit that the Strasbourg Court has not been concerned with whether a person appears to be content. Rather, the Court has been concerned with the need to provide information, and check understanding of that information, in order to reach a view of whether a person is consenting. This is something that would happen almost by default under the Mental Capacity Act, where capacity is time and decision specific, but would not necessarily happen where someone is subject to a blanket deputyship order (as is the case in most of the Strasbourg jurisprudence about Article 5).

In addition, the Strasbourg Court separates out the process eliciting consent, whether that consent is informed, and whether that consent is valid. The case of N v Romania demonstrates that the Strasbourg Court does err on the side of caution – which is also reflected in Cheshire West.

Day 3, 22 October 2025

NB. This blog will be updated on 24 October 2025.

The continuation of submissions on behalf of the charities

The charities take the view that the test proposed is vague, unworkable, and uncertain. It is impossible to implement without removing safeguards. In addition, the case of the Attorney General raises more questions than answers. What is a sufficiently positive wish? To what is a positive attitude being displayed? Is that positive attitude over a period of time or a snapshot? If someone is given sedating medication, how does that fit into the assessment?

Counsel also stressed that the examples provided by the charities deal with the reference i.e. the question of valid consent through an expression of wishes and feelings. The charities take the view that the argument raised by the Secretary of State is separate. However, the charities submit that the person with limited ability to form views and proactively decide what to do should have the same protections and safeguards as those who can.

In concluding, Arianna Kelly explained why the charities do not think that this is an appropriate case to apply the 1966 Practice Statement in relation to the Secretary of State’s submissions. This is because: the reference does not propose to change the acid test, which is what Cheshire West was concerned with; the subjective element is concerned with valid consent, not whether there is a deprivation of liberty; no new Strasbourg authorities undermine Cheshire West; there is a strong interest in preserving stability and clarity of existing precedent, which Cheshire West does provide; the government has had an opportunity (in other cases) to run the arguments it makes in this case but has not done so; with respect to the current administrative problems, Cheshire West does not obligate the government to run the current DoLS scheme in the way it does, and it is within the power of the government to change that.

The Official Solicitor (from 45.23 of the recording)

Emma Sutton KC made submissions on behalf of the Official Solicitor, and the position of the Official Solicitor is broadly that of the Charities.

Counsel provided the court with three real, as opposed to hypothetical, examples of people who the Official Solicitor has represented in the Court of Protection. In all of these cases, the protected party was said to be in some way content with their living arrangements. However, in all of these cases the scrutiny of the court revealed this not to be true. All of these examples were said to demonstrate that an assessor describing somebody as content and/or consenting may not necessarily capture the full picture, and independent safeguards are needed.

Lord Sales in particular pushed this point, and expressed his view that some of the people in the examples would actually not be considered to be consenting under the proposed Code. Counsel submitted that there is “not enough detail” in the Code for that to be a certainty.

Counsel also returned to a comment made by Lord Reed on Day 1, in which he said that “people with significant cognitive impairments do not have liberty to lose” (this is how Counsel captured the comment at 1.10.35-1.10.44 of the recording). Counsel implored caution in this regard, remaining the court that P does have subjective experience of the world whereas that line of thinking implies otherwise. Counsel also stressed the importance of understanding the care plan exerts control over a person’s day-to-day life.

The Official Solicitor also takes the view that identifying a deprivation of liberty is a fact specific exercise. Counsel implored the court not to rely on hypothetical examples and speculate from them. Rather, the case law should develop at first instance with a fact specific matrix.

Response of the Attorney General (from 1.36.31 of the recording)

Counsel acting on behalf of the Attorney General took this opportunity to re-state the Attorney General’s case by reference to opposing arguments. In Cheshire West, the analysis was said to be “too austere” in relation to MIG and MEG but that the outcome for P was correct. The test of consent as an autonomous concept was said to be beyond capacity, and speaks to the preferences of the individual.

The current approach to identifying a deprivation of liberty has a problem of over-inclusion i.e. people who should not be involved in the framework but whose inclusion ensures safeguards. This means there are more people deprived of their liberty than are in the prison population.

There was some discussion between counsel and the judges about whether the proposed changes would apply to an inpatient in a psychiatric hospital. The incorporation of the autonomous concept would entail sufficient understanding rather than legal capacity. The specific question being considered is whether a person assents to confinement in the context of social care detention. It sounded like there may need to be a different test for an inpatient in a psychiatric hospital but (and I’m editorialising here) that wasn’t overly clear.

When can we expect a judgment?

At the conclusion of the hearing, the judges did not give a timeframe for how long they will need before they hand down the judgment. We probably shouldn’t expect it before Christmas because Lord Reed said that, “this isn’t a straightforward matter, and it will take us some time“.

To give some insight, the passage of time between the hearing of, and judgment in, Cheshire West was five months. That same timeframe was recently repeated in the For Women Scotland case.

That being said, I wouldn’t bet on it. In the case of Abbasi, exactly a year elapsed between the conclusion of the hearing and the handing down of the judgment.

Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research considers Iris Marion Young’s claim that older people are an oppressed social group. It is funded by WRoCAH. He is on LinkedIn, X @DanielClark132  and Bluesky @clarkdaniel.bsky.social.