by Elissa Novak, 25th June 2026
Editorial Note: This is the second blog post we have published in the wake of the Supreme Court decision, handed down in June 2026, changing more than a decade of law and practice on ‘deprivation of liberty’ (see Endnote for more information).
In overruling Cheshire West, the Supreme Court concluded that its “acid test” alone was not sufficient to establish a deprivation of liberty. There are arguments that the safeguards had become too broad and too burdensome for an already overwhelmed system. But my family’s experience sits uneasily with that account. For us, this did not feel like a system overwhelmed by safeguards. It felt like one that was under-resourced, adversarial, and unwilling to make those safeguards accessible when they were most needed.
In 2014, in Cheshire West, the Supreme Court held that a person was deprived of their liberty if they were under continuous supervision and control and not free to leave. Those protections should have been in full working order by the time my Grandma needed them in 2018, but when it came to that point not only were they not put into place for her, we weren’t even told they existed.
Born in 1930, my Grandma was funny, cheeky, loving and firmly opinionated. She had been diagnosed with end-stage heart failure and vascular dementia, with fluctuating capacity and had been living happily in a small nursing home funded by Continuing Healthcare. The nature of her dementia meant she was able to make some decisions independently and needed support with others, but she never lost the ability to express her wishes.
In 2018, I was due to get married. A week before the wedding, the manager of the nursing home told me to prepare myself as my Grandma was “hanging on” for my wedding and would die shortly afterwards. Just four days after the wedding, I received a call from the same manager informing me that, as “I was no doubt aware”, my Grandma had not died, and so needed to move out of the home.
We were told that my Grandma had met with several managers from the local CCG and agreed to move to a particular care home that we knew instantly she would never have agreed to. It was a place she called “the death house”, where her best friend had died two weeks after moving in following complications triggered by dehydration. My Grandma blamed the home for her death and would shake her fists and blow raspberries at it whenever we drove past.
My parents, who held lasting powers of attorney, had not been told about the meeting. They were told this was because my Grandma had now been assessed as having “full capacity” and so did not need anyone present. There were no minutes or meeting notes recording what was discussed, how the move had been explained, how her capacity had been assessed, or whether she had been asked if she wanted a family member present. My Grandma, for her part, had no memory of either the assessment or the meeting.
When we explained the proposed move to her, she told us in unmistakable, and quite fruity, terms that she would not go to “the death house”. By chance, later that week, I was visiting when two managers from the CCG unexpectedly arrived to get my Grandma to sign paperwork. This was another meeting we had not been told about. I was asked to leave but my Grandma grabbed my hand and said she wanted me to stay. During the meeting, it was clear that my Grandma did not understand what was being explained and notably she no longer recognised the name of the home. When I showed her a picture and explained it was where her friend had moved to she immediately told the managers that if they wanted her to go to the “death house”, they should “kill her now to save some time”.
Despite this, the move went ahead on the basis that she had already consented and had full capacity.
I cannot detail every horror that followed, but some are impossible to ignore: the lack of a bed, or any medication and oxygen for her on arrival on moving day, the constant broken equipment, the daily missed medication, the lack of staff, the reused linen covered in the discharge from another resident’s bed sores, the use of restraint to stop her attempts to leave, being left hungry, soiled and distressed and the threats that we would never see her again if we kept raising concerns. Nor will I ever forget the moment she clutched my hand in visible fear at the end of visiting and told me: “You don’t know what it’s like here at night.”
Each day brought a new crisis but when we raised concerns and showed videos of my Grandma saying she did not want to be there and explaining how badly she was being treated, we were told that she lacked capacity and so this could not be taken seriously.
During this same period, my mother was in intensive care after cancer surgery, and I was leaving work twice a day to go to the home and check that my Grandma had been fed, had oxygen and had been given her medication and taken to the toilet. Despite constant contact with the NHS, the local authority and the care provider, nobody told us about deprivation of liberty safeguards, best interests decisions or the Court of Protection. I was too overwhelmed and sleep-deprived and too consumed by the immediate task of keeping her safe to research beyond the advice given by those same bodies.
After a final dramatic escape attempt, which we only learned about later through a subject access request, the home evicted her. My bedbound Grandma had somehow managed to get over the bedrails (in use without risk assessment or consent to stop her leaving), crawl out of her room and across the corridor, and climb down the stairs towards the main doors before staff found her. It was only then that we heard about deprivation of liberty safeguards, when they were cited by the home in the eviction decision following my Grandma’s repeated escape attempts and her repeated statements that she did not want to live there.
She was thankfully then moved to a wonderful home, where she lived for another year before dying peacefully surrounded by her family. It later turned out that everything that happened was entirely avoidable, as this other home could have taken her sooner, having had a room available when she was forced into “the death house”.
I still carry an immense amount of guilt that I did not get her out sooner, and I have to stop myself from thinking too long about what else may have happened that we did not know about. But I also know that families cannot use rights they do not know exist, especially when they are exhausted, frightened, and firefighting one crisis after another.
Like many people, I was brought up to trust that public institutions will protect us when we are at our most vulnerable. Even when I could not understand the motivations of decision-makers in my Grandma’s case, and even when I witnessed first-hand the severe neglect and appalling conditions she and other residents were experiencing, I still believed that someone, somewhere, would do something to help. I believed it could not be possible for people to be effectively imprisoned in such appalling conditions, against their will. Discovering that my belief and that trust was misplaced felt like a betrayal so deep it is still difficult to look at directly.
This is what troubles me about the current debate. We are told Cheshire West overwhelmed the system. Yet my family never experienced an excess of scrutiny. We experienced decisions made without us, safeguards we knew nothing about and could not access, and a system that placed excessive responsibility on us to keep my Grandma safe while in care but then threatened us when we advocated for her wishes and wellbeing.
If safeguards are not visible, understandable and enforceable for all people who need them, then they are failing. But that is not an argument for fewer safeguards. It is an argument for better ones. The overwhelm in the system is real, but it is multi-faceted. It reflects long-term underfunding across the NHS, social care and the legal system, which has left families to fill the gaps in health and social care alone while being expected to navigate complex legal processes without professional guidance.
Poor accountability, inaccessible processes and defensive decision-making compound that underfunding, turning safeguards that should protect people into systems families struggle to find, understand or use. Too many people are living and dying in conditions that should shame this country.
My Grandma’s experience does not persuade me that we need weaker protections. It taught me that robust safeguards are essential, and that they must exist in practice, not just on paper, for everyone who needs them. If doing so overwhelms the system, then the system is not fit for purpose and an urgent and far more radical rethink is needed.
Elissa Novak is an unpaid carer to her son and studies Law part-time with the Open University through its Carers’ Scholarship Programme.
Endnote (by Daniel Clark)
Back in 2014, In Cheshire West, the Supreme Court considered the meaning of a deprivation of liberty (DoL) through reference to Article 5 of the European Convention on Human Rights. Lady Hale, giving the majority but not unanimous judgment of the Court, presented an ‘acid test’ for deprivation of liberty: is a person under continuous supervision and control, and not free to leave?
On Tuesday 2 June 2026, the Supreme Court handed down judgment in what is increasingly being referred to as “AGNI’ (the case was brought by the Attorney General of Northern Ireland). The Supreme Court overturned Cheshire West, finding the acid test to be wrong in law, and directed a different approach.
First, the identification of the objective element of a deprivation of liberty must entail a multifactorial analysis, which includes consideration of the intensity and purpose of confinement. If these conditions are not satisfied, there is no deprivation of liberty.
Second, a person may lack capacity to make decisions about their care and residence but can nevertheless give valid consent through an expression of their (positive) wishes and feelings. If a person is giving such consent, they are not deprived of their liberty.
To access the judgment, see: Judgment (PDF) (hyperlinked)
To access the court’s approved press summary, see: Press Summary (PDF) (hyperlinked)
To access the commentary published by the Open Justice Court of Protection Project, see: Commentary on the UK Supreme Court case about deprivation of liberty (hyperlinked)
If you would like to contribute a commentary about this judgment, please contact openjustice@yahoo.com, and mark your email for the attention of Daniel Clark.
Promoting Open Justice in the Court of Protection 