An important legal development is on the horizon that could reshape how safeguards are applied to individuals who lack capacity in relation to their care and accommodation.
The UK government has announced its intention to intervene in an upcoming Supreme Court case that will revisit the 2014 Cheshire West judgment—a key ruling that defines when care arrangements amount to a deprivation of liberty under Article 5 of the European Convention on Human Rights (ECHR).
The case has been brought by Brenda King, Attorney General for Northern Ireland, who is asking the court to decide whether proposed changes to Northern Ireland’s Deprivation of Liberty Safeguards (DoLS) code of practice are compatible with Article 5. This article allows for the deprivation of liberty of individuals of “unsound mind,” but only through lawful procedures such as DoLS in Northern Ireland or its equivalents in England and Wales.
Currently, the Northern Ireland code follows the Cheshire West criteria: safeguards are required when a person is under continuous supervision and control, is not free to leave, and lacks the mental capacity to consent to their confinement.
However, Northern Ireland’s Minister of Health, Mike Nesbitt, is proposing a significant change. Under the new approach, a person could be considered to have given valid consent to their confinement based on their expressed wishes and feelings, even if they lack the legal capacity to do so. This would mean they are not considered deprived of liberty under Article 5, and no formal authorisation would be needed.
The implications of this case extend beyond Northern Ireland—any ruling will apply to England and Wales as well.
While the UK government has not yet declared its stance on the Cheshire West precedent, a spokesperson for the Department of Health and Social Care (DHSC) explained the decision to intervene:
“The Supreme Court’s decision could have a UK-wide impact, and we therefore feel that the UK government should have a voice in the conversation.”
The case is scheduled to be heard on 20 October 2025, We are concerned that these changes could undermine people’s rights and remove essential safeguards and protections currently provided under the existing DoLS framework.
UK government to intervene in Supreme Court deprivation of liberty case – Community Care
DfE has published a report, which it commissioned, on looked-after children and young people with multiple needs who are at risk of, or subject to, a deprivation of liberty.
‘There is an escalating use of Deprivation of Liberty Orders. Over 2,500 children and young people were deprived of liberty in response to mental health, safeguarding and welfare concerns in 2023/24. The use of the High Court’s inherent jurisdiction as the most common route for deprivation of liberty in this context reflects systemic issues that impede appropriate responses to children and young people’s needs.’
Further concerns were raised surrounding Insufficient early help and fragmented services, meeting complexity of needs, adversity and placement instability, and market failures.
You can read more about the findings here: Improving the outcomes of looked after children and young people in complex situations with multiple needs, at risk or subject to a Deprivation of Liberty
The Law Commission has issued recommendations to simplify the legal system that supports disabled children, describing it as “unnecessarily complex.” The goal is to give disabled children and their families clearer rights and more reliable support across England.
Following a two-year review of social care law, the Commission found that national eligibility criteria are needed to end the “postcode lottery,” where the level of support varies depending on where a child lives.
In its government-commissioned report, the Commission proposed several changes. These include making it a legal duty for councils to assess the needs of disabled children and a separate duty to meet those needs, based on national criteria. It also recommends giving children, their parents, and carers the right to independent advocacy, especially when they might struggle to take part in assessments or care planning.
To make these changes, the Children Act 1989 would be amended to introduce a specific set of rights and entitlements for disabled children. This would be supported by clear guidance for councils to help them balance meeting the needs of children and their families with keeping children safe from harm.
Read more about the recommendations here: Disabled children: national eligibility criteria needed to end ‘postcode lottery’, finds law review – Community Care