Government warns against “superficial or rushed” deprivation of liberty assessments following Supreme Court ruling

Responding to correspondence from the Joint Committee on Human Rights (JCHR) on the Supreme Court judgment and its implications for the operation of deprivation of liberty safeguards, Minister of State for Social Care Alison McGovern said the Government “respects the Supreme Court’s decision” and aims to “support the health and care sector to understand the judgment and apply it lawfully and consistently”.

On 2 June 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, the Supreme Court took the unusual step of overruling its 2014 decision in Cheshire West, which it concluded had been wrong in principle.

This prompted a furious reaction from the three charities that intervened in the case, who described the ruling as “the biggest rollback of disability rights in a generation”.

In a letter to the JCHR published last week (8 September), McGovern said: “Although some concern has been expressed about the judgment potentially removing safeguards from vulnerable people, it’s important to recognise that wider statutory protections provided through, for example, the Mental Capacity Act 2005, the Care Act 2014 and the Human Rights Act 1998, and other relevant legal frameworks, continue to apply.”

Meanwhile, McGovern stated that the Supreme Court judgment does not remove the need for “careful, person-centred” assessment.

She wrote: “Decision-makers must continue to consider the individual’s circumstances, wishes and feelings and act in accordance with the wider legal framework. The guidance we published on 15 June makes clear that where there is uncertainty about whether a person is deprived of their liberty, or where there is doubt about whether apparent agreement amounts to valid consent, practitioners should seek appropriate advice and consider referral to making use of existing legal processes, including an application for Deprivation of Liberty Safeguards or a referral to the Court of Protection where appropriate.

“A key safeguard is that determinations should be made on the facts of the individual case. The Government does not expect superficial or rushed assessments. Local authorities, NHS bodies and providers remain responsible for ensuring that assessments are conducted appropriately and in accordance with their legal obligations.”

Turning to the implications for children, McGovern observed that while the case did not concern the deprivation of liberty of children, Article 5 applies to both adults and children.

She said: “The government remains committed to protecting the rights of vulnerable children and local authorities have a duty to safeguard and promote the welfare of every looked-after child. In exceptional circumstances, this might include placing restrictions on the child where this is required to keep the child safe.

The minister added: “Those involved in the child’s care must continue to ensure the relevant court approval is obtained where restrictions amount to a deprivation of liberty.”

Lottie Winson