By Eleanor Tallon, 29th October 2025
“What about somebody who is so demented they’re effectively catatonic. Just spend the day in front of a television set. Is that person- In what sense does that person have any liberty which she can be deprived of?”
Lord Reed, president of the supreme couRt 2025
The question asked by Lord Reed was in the context of discussion on the first day of a hearing in the Supreme Court on 20th October 2025. [1] He was one of a panel of seven judges hearing the case brought by the Attorney General of Northern Ireland to reconsider the Cheshire West decision, more than a decade after the landmark judgment in which Lady Hale upheld the rights of people with disabilities and ruled that liberty applies universally. Lord Reed is currently President of the Supreme Court, having replaced Lady Hale in 2020. The contrast between the former and current President is stark.
It was hard to believe some of the stigmatising and derogatory language used by Lord Reed and some other judges to refer to people with dementia. It ran counter to all the guidance put out by the relevant charities,[2] and it felt deeply regressive, particularly given the judges’ influence and positions of power.
What kind of message is conveyed to the public? That the ‘demented’ person left for hours staring at a TV set has no concept of quality of life, let alone freedom, so why does protecting their liberty (if they can be said to have any such thing) matter?
The reactions from many people watching the Supreme Court hearing unfold, and commenting on it in the WhatsApp group hosted by the Open Justice CoP Project (which included Best Interests Assessors, family members, health and social care professionals, academic researchers, lawyers and advocates) indicated very strongly that protecting everyone’s liberty does matter.
As a Social Worker and Best Interest Assessor, I am firmly rooted in rights-based values. Clearly focusing on the wishes and feelings of every individual is at the forefront of my approach, whether these are communicated through words, signs, behaviour, or by others who know them well.
I believe everyone has a right to liberty, and this shouldn’t depend on their perception of liberty, given that this will be experienced in different ways and on different scales. Some people may not conceive of a life without restrictions, while others may have very minimal awareness of their surroundings. Is this an off-switch for their rights and freedoms? No. It simply requires more thought, sensitivity and relational connection to promote the person’s liberty, their dignity, and their will and preferences.
Of course, liberty safeguards could and should be embedded within wider care planning. Unfortunately, the reality is that in many cases, this isn’t happening, and I have seen firsthand how the health and care systems have failed people, from the non-verbal person placed in a wheelchair facing a blank wall, to the neurodivergent person who retreated to live in the shower room for months, due to their unhappiness.
Human rights can be eroded to the point where people are treated as objects, to be ‘done to’. Some people are unable to clearly express their complaints or articulate their wishes and feelings, and some people are conditioned to accept being treated as non-volitional. These factors can lead to misinterpretation and misrecognition of their rights.
In my experience, the independent scrutiny of care plans and formal representation afforded by the Deprivation of Liberty (DoL) authorisation process has been crucial in ensuring the person’s voice is heard, that the care plan aligns with their wishes and feelings, and that their liberty is protected.
It is from this vantage point that I become increasingly frustrated with the narrative that Deprivation of Liberty authorisation is the padlock, which creates the confinement.
The authorisation process is flawed and is in desperate need of revision and resources, but it does not create the confinement: it seeks to provide safeguards to those who are objectively confined by the care plan already in place, and who are unable to challenge such arrangements.
Unsurprisingly, I recoiled when counsel for the Secretary of State described the Cheshire West judgment as creating the ‘great confinement’, and I welcomed the corrective response from Lady Rose:
“I don’t think you can say that Cheshire West led to a mass confinement of people. What it led to maybe was a re-characterisation of the existing confinement of a lot of people as being a deprivation of liberty”.
Lord Hodge agrees: “It is merely a re-characterisation – and the imposition of a considerable burden on the public authorities”.
This exchange crystallises the real issues.
Thousands of people are being objectively confined – sometimes as a proportionate response to risks of harm, but not always. Where the confinement is legally classed as a Deprivation of Liberty, the person is provided with Article 5 safeguards, i.e., independent checks and the means of appeal.
This is seen as a burden (in terms of public costs and resources), and this seems to be the underlying reason for trying to change the goal posts. As the Attorney General for Northern Ireland’s advocate put it, the aim is “to narrow the cohort who are drawn into the system”.
I agree that there needs to be more nuance in how the safeguards are applied, allowing a more targeted approach for individuals who are highly restricted or unhappy with the arrangements. We need a properly funded liberty protection framework that is fit for purpose, and that does not leave thousands of people waiting months, if not years, to be assessed.
Changing the legal definition of Deprivation of Liberty may reduce the number of referrals, but it will not change the fact that there are thousands of people confined, often without oversight, representation or advocacy.
Ultimately, the Cheshire West judgment isn’t the problem. It’s the under-resourced system and oppressive, broken cultures, which need urgent reform to guarantee the protection of the right to liberty.
Eleanor Tallon is an Independent Social Worker, Expert Witness, and Best Interests Assessor. Eleanor is also an ESRC-funded Doctoral Training Pathway (DTP) student at the University of Birmingham. Her research focuses on the application of the Mental Capacity Act (2005) in private brain injury case management. Eleanor can be contacted via email eleanor@mcaprofessional.co.uk or through her website mcaprofessional.co.uk and found on LinkedIn or X(Twitter) @Eleanor_Tallon and Bluesky @eleanor24.bsky.social
[1] You can hear him say this at about 1:07:50 on the recording for 20 October 2025, morning session (on the Supreme Court webpage)
[2]https://www.alzheimers.org.uk/sites/default/files/migrate/downloads/dementia_friendly_language_guidelines.pdf
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