A new approach to deprivation of liberty

This month has seen a significant change in how practitioners and courts are to approach deprivations of liberty for both adults and children moving forward with the Supreme Court decision in A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16 (‘AGNI’). In this article, Madeleine Miller considers this landmark decision.

What has changed?

The old Cheshire West approach no longer applies, whereby the court would apply the ‘acid test’ of identifying whether someone was (1) under continuous supervision and control and (2) not free to leave to determine if they were deprived of their liberty. The individual’s compliance/lack of objection, the relative normality of the placement and the reason/purpose behind a particular placement were explicitly not relevant under this test.[1] This old test was simpler to apply but had resulted in lots of applications and authorisations.

Now the court will apply a multifactorial, holistic approach to determining whether someone is being deprived of their liberty, and crucially a person who lacks capacity to make decisions about their residence and care can still give subjective consent to a situation which would otherwise be a deprivation of liberty. This will involve a more nuanced, but more complex, analysis than previously, and there is likely to be some uncertainty whilst the courts grapple with this new test.

The three elements of the test for a deprivation of liberty remain – the objective element, the subjective element, and imputability to the state.[2] The court made clear that there is an overlap between the subjective and objective elements – someone’s lack of objection can be relevant to the question of objective confinement.

When it comes to the subjective element, lack of legal capacity to make a decision is not the same as valid consent. A person may not be able to make decisions about where they live and receive care, but if they are “conscious of their environment and [have] a basic understanding of their living circumstances so that they can express their view about their situation” and they manifest “their acceptance of the situation they are in”, then they may not be deprived of their liberty.

What is the test now?

• The objective element

A holistic evaluation of the following factors will now be required:

1. Type of measure imposed.[3]
2. The duration of the restrictions.[4]
   1. Are the restrictions in place for a significant period?
3. The effect of the restrictions on the individual.[5]
   1. Are they fairly limited, including locking the doors of a care home to stop people wandering out? This is unlikely to satisfy the objective element.
   1. Are they more intrusive, and imposed to protect the individual or others?
4. The manner of implementation.[6]
5. Degree of supervision and control over the person’s movements.[7]
   1. Can they leave the restricted area?
   1. How available are social contacts?
6. The presence or absence of objections.[8]
   1. Is there coercion? This is a necessary element.
   1. Physical force or restraint are likely clear indicators of confinement.
   1. Has sedative medication been used to manage behaviour where this is capable of suppressing objections? Then their compliance may carry less weight.
   1. Are they trying to leave the accommodation? Are they refusing treatment or care? Has physical restraint been used or 1:1 care? If they are objecting to medication, has this been administered covertly? This may point towards objection.
7. The relative normality of the placement.[9]
   1. Are they in their own home? This means deprivation of liberty is less likely and the restrictions would need to be more server or extensive. If they are at home, is restraint, medication or seclusion being implemented?
8. Where measures are far from confinement in a cell: the purpose of the measures.[10]
   1. Therapeutic purpose may mean a deprivation of liberty is less likely. Proportionality will be relevant.
9. Other relevant rights.[11]

How closely does the case align with the paradigm of deprivation of liberty, which is confinement in a prison cell?[12]

• The subjective element

Does P have sufficient awareness of circumstances in which they are maintained in confinement as to be able to register whether they are happy or unhappy with those circumstances and to enter protest against their treatment if they are unhappy with them?[13]

Does P have a basic level of awareness and consciousness of their living arrangements that is sufficient to enable them to know and communicate whether they are happy or unhappy with them, they may be treated as able to give or withhold valid consent to confinement by an expression of their wishes and feelings?[14]

Have they had a realistic opportunity to express or manifest any objection?[15]

Is P merely complying or acquiescing? In which case this will not be sufficient.[16]

Is P under sedative medication which is capable of suppressing objections? Is there any fear of the consequences or perceived pressure? If so, compliance may carry less weight.[17]

Has P manifested their acceptance of the situation they are in, even tacitly? If so, they may not be deprived of their liberty and should have their opinion respected when this is assessed.[18]

Where P is capable of expressing a view but there is serious doubt about their attitude, no inference of valid consent should be drawn.[19]

Above all, the approach must be practical and realistic.[20]

• Imputability to the state

This remains unchanged.

How does this apply to children and young people?

The new definition applies to children as well as adults.[21]

Before AGNI, the caselaw in relation to children established that children under the age of 16 can consent if competent, as can their parents on their behalf. For young people over the age of 16, parents cannot consent on the young person’s behalf, and the question of whether the young person can consent or not depends on their capacity to make decisions about residence. Whilst AGNI does not specifically address this caselaw, it appears now to be the case that children who lack capacity to make decisions about residence can provide valid consent.

What about people who are unconscious or incapable of expressing a view?

The court has held that, when someone is catatonic, they do not have any bodily physical liberty to exercise and therefore they are not being deprived of their liberty, on either the objective or subjective element. [22]

Where an individual is temporarily unconscious, but has the potential to regain consciousness, the objective element will be present, because they will be deprived of their liberty when they regain consciousness. The subjective element is also present where they clearly do not, or would not, consent.[23]

Controversially, this means that people who are least able to object to their situation and least able to communicate do not come under Article 5, a consequence which the court in Cheshire West explicitly avoided.

When someone is incapable of expressing a view, the court suggested that there may be cases where it is appropriate to refer to the view of a person with authority to make decisions for that individual in their best interests.[24]

Examples of application of the new test from the judgment

Deprivation of liberty:

• Someone who is temporarily unconscious if they would be prevented from leaving when they regain consciousness.[25]

No deprivation of liberty:

• Someone in hospital in a minimally conscious state.[26]
• Someone experiencing catatonia and unable to express any view.[27]
• Someone prevented from leaving hospital because they are confused due to medication.[28]
• Someone whose arrangements are as close to normal as possible and they are happy with their arrangements (MIG).[29]
• Someone who shows no wish to leave the facility or go out alone, happy living where they are, tranquillising medication not used to disable them from forming a view about their arrangements even if there are outbursts and physical restraint (MEG).[30]
• A child with profound disabilities under constant supervision and control because of care, not to prevent leaving, where physical inability renders them incapable of doing so and no desire to leave expressed or formed.[31]

No clear answer was given in respect of “P” from Cheshire West albeit that the court said that some features of the situation “tend to indicate he was not subject to a deprivation of liberty”.[32]

What approach should be taken now?

If there is any doubt about consent, the matter should be escalated to the Court of Protection.[33]

For existing authorisations, a Part 8 review will likely be needed. All decision-making should be recorded.[34] Authorisations can remain in place pending review and this will not, in and of itself, be an unlawful deprivation of liberty.

Mental capacity assessments for deprivation of liberty will need to consider whether there is valid consent. Care will need to be taken to distinguish consent from compliance.[35] Evidence will need to be gathered of the person’s actual wishes and feelings, making sure that whatever support is required to enable them to communicate is provided. Assessors will need to be vigilant where P is under sedative medication, where there is any suggestion of pressure, fear of consequences or feeling that they do not want to be a burden.[36]

Where there are ongoing proceedings, it will be for the local authority or ICB to raise with the court whether they consider that there is no longer a deprivation of liberty. Evidence will need to be filed which should address the new test and the local authority’s position on whether authorisation is required from the court. Local authorities should ensure they have developed a comprehensive list of the factors to be taken into account to inform this evidence. The view of the Official Solicitor could then be sought in response. Whilst this exercise is undertaken, authorisations can remain in place. Of course, even if there is no longer a deprivation of liberty to be authorised, for example because P is validly consenting, there may still be best interests decisions which the court needs to make on their behalf. The local authority should ensure that any care plans are up to date and that P has been visited sufficiently recently so that the court has all the information it needs to make the decision.

Further content

Deka Chambers’ Dekinar focuses on the impact of the judgment for those involved in Court of Protection proceedings.

There is an upcoming webinar by the Association of Lawyers for Children on the impact of the judgment on children and young people specifically on 16 July 2026.

[1] P v Cheshire West and Chester Council [2014] UKSC 19

[2] Storck v Germany [2005] ECHR 61603/00

[3] AGNI paragraph 53

[4] AGNI paragraph 135 and 53

[5] AGNI paragraph 136

[6] AGNI paragraph 53

[7] AGNI paragraph 121

[8] AGNI paragraphs 53, 151, 187, 188 and 189

[9] AGNI paragraphs 53 and 193

[10] AGNI paragraphs 53, 130, 132 and 134

[11] AGNI paragraph 141

[12] AGNI paragraph 119

[13] AGNI paragraph 135

[14] AGNI paragraph 201

[15] AGNI paragraph 172

[16] AGNI paragraph 191

[17] AGNI paragraph 188

[18] AGNI paragraphs 53 and 191

[19] AGNI paragraphs 53 and 191

[20] AGNI paragraph 127

[21] https://www.gov.uk/government/publications/changes-to-the-definition-of-deprivation-of-liberty/uk-supreme-court-2026-judgment-on-what-constitutes-a-deprivation-of-liberty

[22] AGNI paragraph 142

[23] AGNI paragraphs 143-145

[24] AGNI paragraph 164

[25] AGNI paragraph 143

[26] AGNI paragraph 116

[27] AGNI paragraph 142

[28] AGNI paragraph 145

[29] AGNI paragraph 203

[30] AGNI paragraph 204

[31] AGNI paragraph 196

[32] AGNI paragraph 205

[33] https://www.gov.uk/government/publications/changes-to-the-definition-of-deprivation-of-liberty/uk-supreme-court-2026-judgment-on-what-constitutes-a-deprivation-of-liberty

[34] https://www.gov.uk/government/publications/changes-to-the-definition-of-deprivation-of-liberty/uk-supreme-court-2026-judgment-on-what-constitutes-a-deprivation-of-liberty

[35] [35] https://www.gov.uk/government/publications/changes-to-the-definition-of-deprivation-of-liberty/uk-supreme-court-2026-judgment-on-what-constitutes-a-deprivation-of-liberty

[36] [36] [36] https://www.gov.uk/government/publications/changes-to-the-definition-of-deprivation-of-liberty/uk-supreme-court-2026-judgment-on-what-constitutes-a-deprivation-of-liberty