By Sandra and Joe Preston, Lorraine Currie, Alison Golding, Eleanor Tallon, Hilary Paxton, Mary Kadzirange, and Lucy Series (with an introduction by Daniel Clark), 21st November 2025
On 20-22 October 2025, the Supreme Court heard a case in which they were invited to re-consider the definition of a deprivation of liberty. You can view a recording of the proceedings on the Supreme Court’s website and read our previously published blogs about the case on (collected together here).
We’ll publish more about the case once the judgment is handed down, but that’s unlikely to be before early 2026 at least. While we wait, we thought it would be interesting to hear what people who had watched the live-stream or the recordings would decide if they were a Supreme Court judge. Shortly after the hearing, we issued an open call for contributions to answer that very question.
The answers we received to this question have been presented in no particular order, though I have tried to directly juxtapose responses that stand in contrast to one another. This approach brings to the fore how much variety there is. That’s to be expected because of the considerable diversity of people who have contributed. Where there are similarities, that’s entirely coincidental.
Open justice means that members of the public have access to courts and can watch hearings. That means the observers form opinions about what they see, opinions informed by their own unique expertise and knowledge base (professional and personal).
The question before the Supreme Court was whether the proposal from the Attorney General for Northern Ireland was compliant with the Strasbourg jurisprudence concerning the proper interpretation of Article 5 of the European Convention on Human Rights. For the most part, the contributors to this blog have chosen not to answer this question, and instead tend to focus on the broader issue of what they do (and don’t) want to change about DOLS.
First, Sandra and Joe Preston explain their view that the current approach to DOLS should change because, contrary to the view expressed by the Charities, repeated DOLS assessments are intrusive.
Second, Lorraine Currie says that she would “ease” the impact of Cheshire West but that, in her view, this ought to be done by a change to the Code of Practice rather than in the Act itself.
Third, Alison Golding engages in close interpretation of Article 5, and makes the case that there should be a high bar for assessing a person’s “contentment” with their living arrangements but a low bar for identifying an objection.
Fourth, Eleanor Tallon considers the Convention on the Rights of Persons with Disabilities. She thinks that the acid test should remain as-is but nevertheless thinks that the question of what being free (or not) to leave means in the context of the person living in their own private home or with family.
Fifth, Hilary Paxton considers the role of external scrutiny, with a particular focus on the role of visitors.
Sixth, Mary Kadzirange discusses the relationship between safeguarding and deprivations of liberty.
Seventh, Lucy Series reflects on the passage of time since the hearing in Cheshire West (which she observed). Ultimately, she thinks that the robust safeguards needed for valid consent should be provided through legislation.
1. DOLS and intrusive assessments
By Sandra and Joe Preston
Three charities (Mind, Mencap and the National Autistic Society) acted as interveners in the Supreme Court case, represented by Victoria Butler Cole KC. At one point, in response to the Secretary of State’s observation that families find repeated DOLS assessments intrusive, the advocate said that the charities she represents “had not found this to be an issue”. This has certainly been an issue for us.
Joe’s mother has Alzheimer’s. Until recently, she’s been living in a care home where she’s been safe, cared for and generally content. Some of her behaviour was treated as “objecting” including saying she wanted to go “home” (she meant to the town where she lived as a small child), and occasionally banging on windows and doors (out of frustration at having to wait for staff to escort her inside and out). We both believed her objections were to the situation she found herself in – with diminishing cognition, and she was generally happy. The only thing that caused her real distress was the Deprivation of Liberty process itself – when someone from the Supervisory Body took it upon themselves to interrogate her as to where she would like to live. This could unsettle her for days at a time.
The first DOLS authorisation was issued in May 2021, valid only for three months “to ascertain whether P’s behaviour constituted an active and consistent objection to her placement”. This was the beginning of a period of short-term DOLS assessments involving 23 visits from 16 different officials and a s.21A court hearing, before remaining in her placement was determined to be in her best interests. We wrote about this in our previous blog post (A court hearing and 23 visits from 16 officials: Family doubt that ‘Deprivation of liberty’ is working in the public interest). We hoped that, after this court hearing, and a carefully worded order from the judge, that would be an end to repeated and disruptive short-term DOLS assessments and authorisations for her. Sadly this was not to be.
Joe’s mum has recently been admitted to hospital following a series of falls and is still there as her previous care home would not have her back. The hospital brokerage team has finally identified a nursing home that will take her and provide 1:1 support which she is currently assessed as needing because of her falls risk, dementia and delirium. On the DOLS front, the one that was extended at the CoP in June is now void and the Court Order which refers to her former care home is not quite the document it was in June. The hospital has put their own DOLS in place to cover her lengthy stay there, and as soon as she is discharged to the new nursing home she will require another DOLS being authorised. She is being placed there under the D2A process, so possibly only for 4-6 weeks, but it is too soon to second guess whether she will then need another DOLS or not.
We are leaning towards the AGNI/DHSC view and would question whether those with advanced dementia are actually deprived of their liberty under Article 5 – surely it is their illness that has deprived them of their liberty and if they require 1:1 care to keep them safe from harm and have no alternatives but to live in nursing placements identified for them by an Integrated Care Board do they need as many authorisations as Joe’s mum is now facing? She finds them distressing and intrusive, and as for us, we certainly don’t want our last days/weeks/months together taken up with DOLS bureaucracy, but instead to spend what precious time we may have left with her at the end of her life. In our view, DOLS for Joe’s mum is not just a waste of public money, it also actively causes harm and diminishes the quality of our family life.
Joe and Sandra Preston are the son and daughter-in-law of a P who was involved in Court of Protection proceedings. They can be contacted through the project email on openjustice@yahoo.com.
2. “I do not see how I could reach a decision”
By Lorraine Currie
I’ve been asked the question what would I decide to do if I was a Supreme Court judge in the Northern Ireland reference about valid consent.
From observation of the hearings, and putting myself in their shoes, rather than my own, I simply wouldn’t have enough information on which to decide anything. So many options were presented beyond the original reference e.g. Cheshire West was re-examined but not in any great detail, the question of valid consent inferred by the persons wishes and feelings was discussed, but so many relevant players were not represented. We heard nothing from the Dementia charities, we heard nothing from the likes of Social Care futures or a Gloriously Ordinary life who may have had a different take. We didn’t hear actual case studies of those negatively impacted by the repetition of DoLS and we didn’t hear from local Councils or DoLS Leads who could explain the burden of DoLS not only on systems but on the people at the heart.
Without a full and complete re-examination of DoLS in 2025 I do not see how I would reach a decision.
I sense that some of the Judges were definitely inclined to limit the impact of Cheshire West whilst others were totally oblivious to its reach and I would be one of those who would like to limit its reach.
I would probably allow the interpretation as requested by the Attorney General for Northern Ireland but in doing so, by in fact allowing a policy change in the Code not in the Act, I would be fully aware that this would open the doors to further challenges reaching the Supreme Court in regard to this interpretation.
I would also be concerned that (as a Judge) I would have no role in ensuring the necessary safeguards were in place. I would however see this as an opportunity to promote rights but I would then want to be fully involved in setting up a system of safeguards (in my normal role). It then might be that the easing of Cheshire West offered by the interpretation actually results in a second parallel and complex process of alternate 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.
3. Interpreting Article 5
by Alison Golding
Firstly, Article 5(1)(e) does not apply to a person who is unable to make any expression of wishes through any means, such as a person in a persistent vegetative state, as their situation does not reach the criteria set out in the universal test in Guzzardi for there to be a deprivation of liberty: the tests in Guzzardi depend on the recognition by the subject that they have, even if only at a most minimal level, either bodily autonomy or the right of bodily autonomy. (Only a mental element is relevant here: a person with e.g. locked-in syndrome who is able to communicate has the ability to recognise and consent or object to their living circumstances and so be subject to restraint.)
Secondly, Article 5(1)(e) only applies if a person is “of unsound mind”: a person who has legal capacity to consent, or not to consent, to their living arrangements is not of unsound mind for the. purposes of Article 5(1)(e). This analysis explains Storck, Stanev and Mihailovs: a valid refusal or lack of consent excludes any lawful power for national authorities to confine in accordance with Article 5(1)(e), confirmed by the use by ECtHR of the legal term “consent”.
The test for whether a person can validly grant or refusal consent so as to take them outside the scope of Article 5(1)(e) is separate from a general test as to whether a person is “of unsound mind”, and depends on that person’s living arrangements and on whether they are consenting or refusing. A child living at home with caring parents, on reaching adulthood, may be able to relatively easily express by their manner and expressions that they are validly consenting to that arrangement. (In Cheshire West, the manner and expressions of MIG, living contentedly in the closest available arrangement to a caring parental home, might be taken to meet this standard.) The barrier for a person in an institutional arrangement expressing contentment to that arrangement is likely to be subject to a higher barrier for that expression to be treated as consent, and the barrier for their expression of objection to be valid lower.
Where the above analysis leads to a person not being within the safeguards of Article 5(1)(e):
(a) they are protected from DOL by the application to them of the safeguards of Article 5 as a whole,
(b) they still have the benefit of the protections in Articles 2 to 4 and 6 to 12, for which national protections other than DOL procedures may be required.
Alison Golding qualified as a Solicitor in local government. She then worked as a legal adviser in various UK Government Departments for 25 years until early retirement.
4. Valid Consent to Confinement through Wishes and Feelings: What Would You Decide?
By Eleanor Tallon
The requirement to provide information to enable a person to make an informed decision is a definitive characteristic of consent. The person’s right to withdraw consent without adverse consequences is another key factor. Therefore, my initial concern would be that changing the meaning of valid consent (in the context of confinement) risks placing health and social care providers in a state of uncertainty about the meaning of consent.
This could also erode responsibilities to support decision-making and gain informed consent for care and treatment. Further complexities, against a backdrop of uncertainties and misapplication of the MCA and DoL processes, would not be helpful.
The Attorney General claims that accepting positive wishes and feelings as valid consent would support the principle of Article 12, Convention on the Rights of Persons with Disabilities (CRPD), the right to enjoy legal capacity on an equal basis. Yet, the person’s wishes and feelings would only be accepted as valid consent if they agree to the arrangements. If the person subsequently objects, they would not be free to withdraw consent; they would remain objectively confined and deprived of their liberty.
To truly promote legal capacity, the person’s will and preferences would determine the decision, as far as that is practically achievable. This would apply in all areas of the person’s life so that their home and daily experiences reflect who they are and what they want, regardless of decision-making capacity. It’s not about constructing a fantasy that the person has legal agency to consent to their confinement, while removing that as soon as the person acts in opposition to those who really hold the power.
While I absolutely support the aim to embed the CRPD on the domestic level, it seems to me that this can be done in more effective ways than changing the definition of valid consent to confinement, such as through legislative reform, and incorporating human rights into practice cultures (focusing on the Reach Standards, Social Care Future and Gloriously Ordinary Lives as guiding initiatives is a good starting point).
Secondly, I would question how valid consent to confinement can be given by wishes and feelings. The person’s happiness in relation to their confinement would be difficult to quantify, and there are real risks of misinterpretation, susceptibility, coercion, and misrepresentation by those responsible for the person’s care. If the safeguards are removed because the person is deemed to be ‘happy’, as it stands, there is no clarity on what alternative safeguards would be available and no guarantee that the individual’s right to liberty would be protected by any other means.
It is not uncommon for the presumption of capacity to be used defensively by services and professionals to divert responsibilities. Similarly, the person’s proclaimed ‘happiness’ could be used as a mechanism to avoid the additional administrative and resource burdens for providers and authorities, which are warranted when the person meets the threshold for Deprivation of Liberty (DoL).
In terms of the acid test for confinement, as defined in the ‘Cheshire West’ judgment (2014), I would advocate that this remains. It provides clarity for care providers when identifying a confinement. If both arms of the acid test are met and there is no valid consent, this would trigger a referral for assessment under DoLS or the judicial authorisation process. A more nuanced evaluation will then be carried out by the Best Interest Assessor or the Court of Protection, while considering the concrete factors outlined in Guzzardi v Italy (1980) to establish whether a person is objectively confined.
However, I would urge more consideration around the second arm of the acid test, which is often misinterpreted. Not being free to leave is conflated with restrictions on leaving in the immediate sense (i.e., locked doors). Yet such restrictions would fall within the scope of continuous supervision and control. The relevant question to determine the second arm of the acid test is whether the person is unable to leave permanently, to live elsewhere.
Often, care arrangements within institutional-type settings will satisfy the objective test for confinement. Many people in care homes or hospitals are not free to live elsewhere because their care and residence are inextricable. If that is considered the legitimate, least restrictive option to meet their needs, then it can be deduced that they are not free to leave. Yet there needs to be a comprehensive appraisal of whether a person who lives in their own private home or with family is not free to live elsewhere. This type of scenario is the most disconcerting when considering the acid test for confinement, and I think it’s worth more thought around what being free to leave means in these contexts.
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.
5. Looking forward to LPS
By Hilary Paxton
Where care and support works best, the provider would not be acting unilaterally. Any arrangements should be part of a care and support plan and be developed in the best interests of the person, based on a needs assessment and their preferred outcomes, and their wishes and feelings on how best to achieve the outcomes.
Whilst LPS is not yet in place and may be subject to further development, I support its aim to embed consideration of liberty and any arrangements that might affect it within a well-thought through response to needs etc. We will of course have debates about skill levels and capacity, but that aim should mean that the provider is only one agent in all this. This is about promoting wellbeing, including the prevention of abuse and neglect. External scrutiny is crucial to ensure there is then no abuse of power by an organisation or individual staff. External visitors (family, advocates, other professionals, clergy, visitors with pat dogs, theatre groups, singers, etc) to settings where care and support are provided all have a part to play to speak up if they see anything that appears untoward. This is not limited to people who may have an authorised deprivation of liberty. It is particularly important for people who do not have any visitors.
We of course, want to get the DoLS and the Court of Protection authorisation bit right, but this is only part of the story for people affected.
Hilary Paxton is a senior advisor at the Local Government Association.
6. Reflections on the post-Cheshire West landscape
By Mary Kadzirange
UKSC/2025/0042 has profoundly underscored the difficult and often uncomfortable tension that persists in the post-Cheshire West landscape. Whilst Cheshire West was grounded in the protective intent of Article 5 of the European Convention on Human Rights (ECHR), seeking to safeguard individuals from arbitrary deprivation of liberty, it has simultaneously placed professionals, families, and the state in an enduring ethical and practical dilemma. It sharpened the focus on protecting vulnerable individuals, yet in doing so, it expanded the scope of what constitutes a deprivation of liberty to such an extent that the boundary between necessary protection and unjustified restriction has become increasingly blurred. This tension is not merely theoretical; it is felt daily by practitioners striving to uphold both autonomy and safety, often within complex and emotionally charged situations.
AGNI highlights the continuing struggle to draw principled and workable boundaries between the state’s duty to protect and the individual’s right to self-determination, privacy, and family life. It raises difficult questions about what true liberty means for people living in care settings, and whether the systems designed to safeguard them have become too rigid or bureaucratic to respond compassionately and proportionately to real-life circumstances.
In practice, the challenge is striking a balance that neither leaves people unprotected nor subjects them to unnecessary intrusion or control. Safeguarding systems must evolve beyond compliance and formality to reflect nuanced human realities. If deprivations of liberty within homes or community settings are not properly authorised, people remain vulnerable; yet excessively procedural approaches risk alienating families and exhausting professional goodwill. Perhaps the path forward lies in proportionate reform, that ensures flexibility, transparency, and humanity, guided by holistic person-centred safeguarding legislation and processes that are further informed by future judicial clarifications, such as the anticipated 2025 Supreme Court deliberations, to recalibrate the delicate equilibrium between autonomy, protection, and proportionality.
Mary Kadzirange is a Registered Mental Health Nurse and a practising Best Interests Assessor She is the Mental Capacity Act lead within West Yorkshire Integrated Care Board’s safeguarding team, and is also Chair of the West Yorkshire ICB Race Equality Network.
7. Being careful what you wish for
By Lucy Series
Twelve years ago, on a grey October day in 2013, I listened to the first day of the Cheshire West Supreme Court and hearing (P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & Anor). The courtroom was full of familiar faces from the world of the Mental Capacity Act 2005. The hearing was, as a barrister later commented, like a seminar with the brightest minds on one of the most challenging questions in mental capacity law: when is a person, who is not confined in a traditional ‘institution’, deprived of their liberty?
I enjoyed watching Lady Hale interject to correct barristers when they had misunderstood some aspects of mental capacity law and the underlying issues. I enjoyed conversations in the lunch break about what would convince the court that the current situation was untenable, that it was unacceptable that a man who had broken down the door of his care home to try and escape it, a woman who had capacity and was asking to live in her own home, and people like MEG and P in Cheshire West, who were being physically restrained and given sedating medications, were not considered deprived of their liberty when their behaviours indicated they were resisting aspects of their care.
Five months later I sat in my office with my friend and colleague at Cardiff University, Professor Phil Fennell[i], reading the Supreme Court’s judgment. We read Lady Hale’s ‘acid test’ of deprivation of liberty: a person is deprived of their liberty if they are subject to continuous supervision and control, and they are not free to leave, regardless of whether it is ‘normal’ for a person with their disability, or whether it is in their ‘best interests’. ‘A gilded cage is still a cage’. Deprivation of liberty must have the same meaning for a disabled person as a person without a disability, because this is the essence of universal human rights. To say otherwise would be to discriminate and deny safeguards that others would be entitled to in their situation. Phil turned to me and said ‘it’s a case of be careful what you wish for’.
Phil has always been wiser than me. This is what I wished for, more or less. I had worked in the kinds of places that P and MEG were being cared for, and some of what I saw was horrifying. I worked with an autistic man with learning disabilities, whose carers took him for walks with a rope around his waist – yet there seemed to be no ‘alarm bell’ that we could ring. The regulator had brought it up in reports, his social worker must have known, and yet it continued. People were confined to their rooms. Sedation, restraint and violence were routine, and went both ways between staff and residents, and between some of the residents themselves. Many residents seemed unhappy, even if they could not clearly articulate this because they did not use words to communicate. Not everywhere was like this, but when I read about P and MEG, this resonated.
So, what did I wish for when the Supreme Court revisited Cheshire West in Re Attorney General’s Reference? That the justices would have the level of understanding of mental capacity law, of the realities of social care, and the egalitarian human rights values that Lady Hale and other justices brought to Cheshire West. I would say that what I saw of the hearing – the first day, online – did not fill me confidence that this is the case. I feel quite worried, if I am honest, about how this will end. I was part of a brilliant WhatsApp group organised by the Court of Protection Open Justice Project – we watched the hearing together and have continued to discuss it. We share an anxiety that this ruling will leave people without the meagre safeguards the law currently entitles them to. Safeguards against inappropriate placements, excessively restrictive practices within settings, measures that restrict the rights and freedoms people could and should be entitled to. And anxiety about the way these populations were being constructed in some comments – not as bearers of rights, but as populations without the capacity for rights.
In the best-case scenario, what would I wish for? I stand by what I wrote (summarised here) that if we take seriously that people have a will, a meaningful subjective experience of the world, then this should be able to make a difference in terms of whether they are categorised as deprived of their liberty or not. The very concept of liberty only makes sense for beings with a ‘will’ – we don’t speak of depriving a rock, or a table or a teapot of their liberty.
I do not agree with the submissions from the Department of Health and Social Care that their subjective perspective is part of the ‘objective’ limb of deprivation of liberty. Logically, subjective experience must go to the subjective aspect of deprivation of liberty, because it is subjective. Objective is what is going on around the person, subjective is what is going on for them.
It is the subjective element that transforms confinement into deprivation of liberty. In everyday life people agree to things that could otherwise objectively amount to a deprivation of liberty, from the mundane (getting on a train, when you can’t get off until the next stop) to the experiences where the point is to be locked in (Escape Rooms). But they are not detained: they have consented.
I think the law should recognise that in some cases people’s subjective experience is of living in the place where they want to live, and being happy with their care arrangements (including any restrictions or supervision to keep them safe). This seems to have been the case for MIG, and for some others caught up under the ‘deprivation of liberty’ label at the moment. I believe we should create a legal framework that can recognise this as a legally valid consent for the purposes of Article 5 ECHR. If we do not, we risk reinforcing the same ableist stereotypes that allow others to say that ‘these people have no will, and therefore no liberty to lose’.
My biggest fear, however, is that ‘valid consent’ will be used as a shortcut, to avoid ‘formal’ assessments and independent checks on the person’s situation. One way this might happen is by treating subjective experience as part of the ‘objective’ limb of article 5. Care providers could treat someone nodding off in an armchair under heavy sedation, or someone cowed and institutionalised, as ‘happy’, and there would be no requirement to submit that judgement for external scrutiny. Nobody would check in on that, and the person and their family may not have the resources afforded by Article 5 to challenge this. That would be worse than where we are now. It would also insert new interpretive chaos into the system, we will be back to the days of councils having different rates of DoLS applications by several orders of magnitude.
Because of the weighty issues at stake here – the right to liberty – and because these are populations whose will is sometimes unclear or contested, there needs
This reflects the requirements of article 12 of the UN Convention on the Rights of Persons with Disabilities, which recognises that everyone – no matter what their ‘mental capacity’ – should be supported and enabled to exercise legal capacity (make legally valid decisions). However, Article 12(4) also says that this must be subject to ‘appropriate and effective safeguards to prevent abuse in accordance with international human rights law… [ensuring] that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances’.
My view is that safeguards for valid consent should – at a minimum – require consultation with the person, and those who know the person well, and there should be a layer of independent oversight and regular review. It will require robust guidance on factors and indicators that preclude valid consent being given (e.g. restraint and sedation as part of care planning, guidance on how to interpret ‘challenging behaviours’). This could (I think) easily be built into the LPS processes and a revised Code of Practice. The system – after all – is supposed to be about protecting liberty, not just authorising taking it away.
Lucy Series is an Associate Professor in the School for Policy Studies at the University of Bristol. She researches and teaches mental capacity, disability rights and adult social care law and policy. She blogs at The Small Places. You can read her book – Deprivation of Liberty in the Shadows of the Institution – free of charge here (hyperlinked) or on Kindle. She is on Bluesky @thesmallplaces.bsky.social.
[i] Professor Phil Fennell is now an Emeritus Professor at Cardiff University. Before retirement he was a Professor of Mental Health Law. We worked together on a Nuffield funded research project on welfare cases in the Court of Protection. He is the author of Treatment Without Consent.
Promoting Open Justice in the Court of Protection 