In A Reference by the Attorney General for Northern Ireland [2026] UKSC 16, the Supreme Court considered when a person who lacks mental capacity is legally deprived of their liberty under Article 5 of the European Convention on Human Rights, which protects the right to liberty and requires proper legal safeguards where that liberty is restricted.
The case arose from a proposed revision to the Northern Ireland Code of Practice under the Mental Capacity Act (Northern Ireland) 2016. The proposed change would allow some adults who lack legal capacity to decide where they live, or how they are cared for, to be treated as giving valid consent to those arrangements where their wishes and feelings clearly show acceptance.
The issue is significant because, since Cheshire West, the law has applied a broad test. A person was generally treated as deprived of liberty if they were under continuous supervision and control and were not free to leave. That became known as the “acid test”. In practice, it meant that many people in care homes, supported living, hospitals, family homes and community settings were treated as deprived of liberty, even where they appeared settled and did not object.
The Supreme Court held that this approach was too rigid and overruled Cheshire West. Article 5, the Court said, requires a practical assessment of the person’s actual situation. Relevant factors include the nature of the restrictions, their duration and effect, how they are applied, the person’s circumstances, and whether the arrangements are protective or coercive.
Importantly, the Court held that lacking legal capacity does not automatically prevent valid consent for Article 5 purposes. A person may be unable to make a formal decision about residence or care, but still understand enough about their everyday circumstances to show genuine acceptance of where they live and the support they receive.
The Court also emphasised caution. Mere compliance, silence, habit or passive acquiescence is not enough. Where there is real doubt about what the person wants, consent should not be assumed.
This judgment moves the law away from a mechanical test and towards a fact-sensitive assessment. It does not mean that vulnerable people are left without legal protection. Restrictive care arrangements may still amount to deprivation of liberty, including in domestic or community settings. But the question must now be answered by looking carefully at the person’s actual circumstances, rather than applying a fixed formula.
Judgment: https://supremecourt.uk/uploads/uksc_2025_0042_judgment_4f54653cf4.pdf
Disclaimer: This post is for general information only and should not be treated as legal advice.
Sean Kennedy
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