By Lorraine Currie, 28th October 2025
Note: This is the first of our blogs following the hearing on 20-22 October 2025, in which the Supreme Court considered how to understand the meaning of a deprivation of liberty. For a summary of each party’s position, these blogs might be helpful: Cheshire West returns to the Supreme Court: The position of the parties and A summary of the arguments heard by the Supreme Court. You can view a recording of the proceedings on the Supreme Court’s website. The illustration for this blog post was painted by Lorraine’s daughter, Grace. To see more of her artwork (and for details about how to purchase it), you can visit her website: https://gracecurrie.art
I share here my take on the concept of valid consent and the three-day hearing in the Supreme Court which has just ended.
I am a social worker with many years’ experience. I qualified as a Best Interests Assessor [BIA] in the first cohort in 2009, and I have taught on BIA courses for many years. I managed a DoLS team until ‘retirement’. I chaired the regional DoLS group and the national DoLS group and have carried out a lot of freelance work for the Association of Directors of Adult social care both nationally and regionally (ADASS, WMADASS) and the Local Government Association (LGA.)
I currently carry out MCA/DoLS work for WMADASS and continue as a freelance trainer.
But above all that I support my daughter, who had traumatic brain injury in 2010.
I watched most of the 3-day hearing as it was live-streamed. On Monday I was quite horrified when I heard some of the language used by the judges to describe both people and situations. Equally I saw that they were horrified to hear that yes, the person who is nursed in bed, whocannot form an intention to leave, who may have no ability to exercise autonomy is deprived of liberty – this is the Cheshire West effect.
I did not hear anything positive, anything at all, about the (equally important) aim of the MCA – empowerment.
After my daughter’s accident and when we knew what her abilities and deficits were, I spent a long time thinking about liberty. How does someone go from a totally self-contained independent free-thinking individual to one with restricted liberty? Has the State imposed those restrictions or has the car which hit her imposed them?
I know it’s not a popular view, but I consider the limitations on my daughter’s liberty arise from the injury. She cannot always bring forward and initiate ideas; she can’t go out alone – not because we or the State want to impede her experience of liberty but because the combination of visual impairment, mobility impairment and speed of processing information make it unsafe for her to do so. So we (the people who support her) manage the risk by ensuring that she is able to go out with another person or is driven where she needs to go. If she did express a wish to go out on her own this would have to be safely managed. Is she content with the arrangements? Yes. Can she make her wishes and feelings known? Yes.
On a personal level, I have ensured that the team who support her are working towards a framework of invisible scaffolding that creates an appearance of autonomy and liberty but is underpinned by a huge amount of support and is predicated on her wishes and feelings, her will and preference.
I looked forward to hearing these issues debated by great minds.
Monday’s hearing was, of necessity, a meander through the legal arguments, why the Supreme Court could look at this issue, what the Strasbourg case law was like to date and, to some extent, what the impact of Cheshire West has been.
But as the judges turned to look at the subjective element (i.e. a lack of valid consent) I felt that people who matter were missing from the story. I know that we heard from the charities (Mencap, Mind and the Autistic Society) on days two and three and I appreciate their position which explored the potential for coercion and that a smile or a lack of objection does not necessarily equal consent. But I take a different position and we didn’t hear from anyone representing actual people from a position which explored the value of a person’s will and preference being significant in decisions about their own life.
DoLS situations fall into a number of camps and the proposition put forward in the hearing for a form of valid consent will by no means affect everyone.
There are people who maybe chose the care home they are in when they had capacity. They may no longer fully know where they are if you ask them but they are totally content.
Then there are those who are really confused about where they are, but still content. They may say to an assessor “Oh yes, its lovely here – we always stay in this hotel, we’ve been coming many years” or they might say “Yes I am happy here and when I’m older daddy’s going to buy me a pony” (the person being 92).
Another person might say “I never want to be in a care home,” then the assessor asks them about where they are now and they reply, “oh yes its lovely here” and it is a care home.
At another end of the spectrum, there are those with very advanced dementia who can no longer speak or communicate their wishes and feelings in any way. I wish we could have widened Ferreira[i] for these people but as it is they need DoLS authorisation, and we certainly wouldn’t consider them to have given valid consent.
Then, as we all know, there are people who really don’t want to be where they are and everything about them and everyone involved tells us this. But these people also (in my view) fall into two camps. There are some people who don’t want to be there and there is a viable alternative; but there are some people who are now so confused that we are told they asked to go home when they were at home, because the home they are thinking of is a different one.
None of these people are likely to be considered to be giving valid consent.
The Official Solicitor as well as the Charities gave examples of people who may have appeared on the surface to be ‘happy’ but when a more forensic examination was carried out, they really weren’t. I understand the fear that this may not be picked up if there is a change in the concept of valid consent, but when we looked at it in just a little more detail I would argue that good social work practice would have picked up the true picture.
We didn’t hear anything about the positive impact of a person’s will and preference being adhered to.
There was reference to community settings during the hearings, particularly when people have been successfully discharged from intense restrictions to a place they call home and are happy but are still considered deprived of liberty, using the Cheshire West acid test. Interestingly Steven Neary’s dad posted photographs of Steven over the weekend; he was shopping, going in and out of his house, living an ordinary life and the caption said, “this is what deprivation of liberty in the community looks like”.
As we all know, and as assessors have all seen, there are situations which should never have been able to continue: over-restriction, unnecessary restriction and very poor unsafe and inadequate care. I can understand a viewpoint such as was expressed by the Charities during the hearing, based on this fear. If a person complies it doesn’t mean they are happy; if they don’t resist, it doesn’t mean they agree. Recognition of these basic facts has been the benefit derived from the universality of the acid test, a wider protection for everyone.
I still think that this is an overprotective approach and that a more empowering approach would, at least in some part, take the person’s wishes and feelings into account in determining whether they are deprived of liberty or not. I agree this must sit in the context of some overall safeguards: better care provision, the Care Act working as it should, safeguarding practice being robust and social work practice being strengths-based and person-centred.
Often during the Supreme Court hearing, it was pointed out that systems don’t work as they should, that there are Council waiting lists and so on, but does this mean that we should rely on DoLS as the only valid protective measure – because there are waiting lists there also!
What the hearing didn’t concern itself with is just how many of these potentially consenting people are exactly the group of people who are not seen as high priority for DoLS. It’s easy to say therefore that DoLS is a safeguard, but if you’re still on the waiting list it isn’t.
On the final day of the hearing (22nd October 2025) we heard that LPS will solve many of these issues but I don’t agree with that. Without a change of definition (either the objective or subjective elements), the numbers of people deprived of their liberty will remain the same. The description we heard and the references given about waiting lists for Care Act assessments will not be improved by also having to carry out LPS assessments.
Also on the final day, the Attorney General for Northern Ireland in the reply summarised the argument (his only argument) that although there is a test of mental capacity in domestic law there is something wider which is consent to confinement drawn from wishes and feelings, i.e. that someone may lack the necessary abilities required by the functional test of the MCA (to understand, retain, use and weigh the relevant information in order to make a decision about their care or treatment), but may still be able to consent to their confinement through an expression of their wishes and feelings.
I am inclined to that personally because if a lack of mental capacity for care and treatment decisions means an automatic inability to consent to confinement, I think we are saying to a lot of people that they don’t matter and therefore their wishes and feelings are not valid. As Lucy Series writes, “It is my view that if we take seriously that everyone has a will – a viewpoint and a subjective experience of the world – then it must be possible for them to experience positive liberty a well…… I mean a living situation and care arrangements that reflect what they want.”
I had hoped to hear Judges grappling with this detail, but a lot of the time I felt they were far removed from the daily world of the Best Interests Assessor and Deprivation of Liberty Safeguards. The reference was on this issue alone but the desire to see Cheshire West overturned – or equally to see Cheshire West remain in place – took over a lot of the three days.
I have no idea what the outcome will be and we have a long wait until we know. Exciting times to be both involved in DoLS and considering the Liberty Protection Safeguards!
Lorraine Currie is now a freelance Mental Capacity Consultant. She has over 30 years Local Authority experience, is a qualified social worker and in 2021 received the LGC Award for Outstanding Individual Contribution. Lorraine provides extensive training and is an Associate for the West Midlands Association of Directors of Adult Social Services (WMADASS) working on DoLS. Lorraine is on Bluesky as @lorrainecurrie.bsky.social
[i] The coroner considered the death of a woman (Maria Ferreira) who had Down’s Syndrome. She died in intensive care. The outcome was that there is a carve out from the general rule about when the acid test applies. This is where the person is so unwell that they are at immediate risk of dying anywhere other than in hospital and the arrangements for delivering treatment are the same as they would be if the patient could agree.
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