Supreme Court to rule next week on deprivations of liberty and valid consent

The case followed a reference by the Attorney General for Northern Ireland (the appellant) of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998.

The issue – as set out by the Supreme Court – is:

Does the Minister of Health for Northern Ireland have the power to revise the Deprivation of Liberty Safeguards Code of Practice so that persons aged 16 and over who lack capacity to make decisions about their care and treatment can give valid consent to their confinement through the expression of their wishes and feelings?

At present, the Code requires that the confinement of persons aged 16 and over for the purposes of care and treatment is formally authorised.

The Northern Ireland Act 1998 limits the Minister’s powers so that the proposed revision to the Code will only be lawful if it is compatible with the rights protected by the European Convention on Human Rights (“ECHR”). These include the right to physical liberty guaranteed by article 5.

The Attorney General for Northern Ireland considers that the proposed revision to the Code is compatible with the ECHR because it would take persons who lack capacity but consent to their confinement through the expression of their wishes and feelings outside of the scope of article 5.

However, this approach to consent would differ from that taken by the Supreme Court in P v Cheshire West and Chester Council and another [2014] UKSC 19.

In Cheshire West, the Supreme Court held that article 5 applies to persons who cannot consent to their confinement because they lack mental capacity. This is the case even where the person who lacks capacity indicates that they are content with the arrangements for their care and treatment.

The interveners in the reference brought by the Attorney General for Northern Ireland were the Secretary of State for Health and Social Care, the Mental Welfare Commission for Scotland and the Official Solicitor.

Charities the National Autistic Society, Mencap and Mind were also given permission to intervene.

In his submissions the Secretary of State argued that the Cheshire West judgment was wrongly decided. This position was strongly criticised by the three charities.

A rare seven-justice panel – comprising Lord Reed (President of the Supreme Court), Lord Hodge, Lord Lloyd-Jones, Lord Sales, Lord Stephens, Lady Rose and Lady Simler – heard the case on 20-22 October 2025.

The judgment will be handed down on Tuesday, 2 June.

See also:

• Revisiting Cheshire West - Lucy Series set out what was at stake before the Supreme Court (October 2025).
• The End of “Cheshire West”? Deprivation of Liberty, Consent and Capacity in the Supreme Court - Brett Davies looks at the issues under consideration at the Supreme Court’s recent hearing on deprivations of liberty and its landmark 2014 judgment (October 2025).