Reference by the Attorney General for Northern Ireland [2026] UKSC 16

The Attorney General for Northern Ireland referred whether a proposed Revised Code of Practice, allowing those lacking mental capacity to nonetheless validly consent to confinement through wishes and feelings, would breach article 5 ECHR. The Supreme Court overruled Cheshire West and held the Revised Code lawful.

Facts

The Attorney General for Northern Ireland referred a devolution issue to the Supreme Court under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998. The reference concerned whether the Minister of Health for Northern Ireland would act within competence under section 24 of the Northern Ireland Act 1998 in issuing a Revised Code of Practice under section 288(4) of the Mental Capacity Act (Northern Ireland) 2016 (“MCA 2016”).

The Revised Code proposed that adults (aged 16 and over) lacking mental capacity under domestic law to make decisions about their care and residence could nonetheless give valid consent to confinement for article 5 ECHR purposes by expressing positive wishes and feelings about their care arrangements that go beyond mere acquiescence. This represented a departure from the conventional understanding of Cheshire West [2014] UKSC 19, which had endorsed an “acid test” of “continuous supervision and control” and “not free to leave”, treating those lacking mental capacity as unable to provide valid consent.

The reference attracted interventions from the Lord Advocate, the Counsel General for Wales, the Secretary of State for Health and Social Care, the National Autistic Society, Mencap and Mind, the Mental Welfare Commission for Scotland, and the Official Solicitor.

Issues

The principal issues were:

• Whether the proposed Revised Code would be invalid under section 24 of the Northern Ireland Act 1998 as incompatible with article 5 ECHR;
• What constitutes “deprivation of liberty” under article 5(1) ECHR for mentally incapacitated adults in community care settings;
• Whether the majority decision in Cheshire West correctly interpreted the Strasbourg jurisprudence; and
• If incorrect, whether the 1966 Practice Statement should be applied to depart from Cheshire West.

Arguments

The Attorney General

The Attorney submitted that Cheshire West went beyond Strasbourg jurisprudence on the subjective element of valid consent. A significant proportion of those treated as deprived of liberty are not, on proper analysis, so deprived—including those positively happy with their arrangements. She invited the court to depart from Cheshire West.

Secretary of State for Health and Social Care

The Secretary of State contended that the subjective element cannot be considered in isolation from the objective element. Cheshire West took a wrong turn in adopting the “acid test” instead of a multifactorial analysis, and the court should depart from it.

The Charities (Mind, Mencap, National Autistic Society)

They invited the court to refuse to determine the reference in the abstract, or, alternatively, to rule the proposed approach unlawful. They emphasised the practical difficulties of assessing wishes and feelings of vulnerable individuals, and the importance of retaining clear safeguards.

Other interveners

The Lord Advocate and Mental Welfare Commission for Scotland supported compatibility with article 5. The Official Solicitor raised concerns about the abstract nature of the review and the risks of removing access to court under article 5(4).

Judgment

The Supreme Court (Lord Sales and Lady Simler, with whom Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lord Stephens and Lady Rose agreed) held unanimously that Cheshire West should be overruled and that the Minister would be acting within competence in issuing the Revised Code.

Test for ab ante review

Applying R (A) v Secretary of State for the Home Department [2021] UKSC 37, the question was whether the Revised Code authorises or approves unlawful conduct in a significant number of cases.

The Strasbourg jurisprudence

The court conducted a detailed review of Strasbourg authorities, including Engel, Guzzardi, Storck, HL v United Kingdom, Stanev v Bulgaria, HM v Switzerland, Shtukaturov, Mihailovs, Nielsen, Creanga, Austin, and Ilias and Ahmed. The court held that the Strasbourg approach is consistently multifactorial, requiring assessment of the “concrete situation” of the individual with account taken of “the type, duration, effects and manner of implementation” of the measure.

The court emphasised that valid consent under article 5 is an autonomous Convention concept, distinct from legal capacity under domestic law. An individual lacking legal capacity may nonetheless have de facto understanding of their situation and express acceptance or objection that should be respected.

Errors in Cheshire West

The court identified several errors in the majority judgment in Cheshire West:

• The acid test crudely isolated two factors and elevated them to a universal test, abandoning the multifactorial approach;
• The conclusion that compliance or lack of objection is never relevant was wrong, as objective and subjective elements overlap;
• The acid test failed to distinguish between settings (e.g. prison versus family home);
• It took no account of innate limitations from an individual’s own physical or mental condition;
• The purpose of confinement was wrongly discounted as irrelevant;
• Lack of legal capacity was wrongly equated with lack of valid consent.

Application of the 1966 Practice Statement

The court applied the 1966 Practice Statement to overrule Cheshire West, citing: the direct definitional link between domestic deprivation of liberty and article 5; the inability of public authorities to apply to Strasbourg to correct overbroad domestic interpretations; and the considerable administrative difficulties caused by Cheshire West (with DOLS referrals rising from 13,700 in 2013-14 to 332,455 in 2023-24 in England alone).

The position of MIG, MEG and P

The court reconsidered the three individuals in Cheshire West. MIG and MEG were held not to have been subject to deprivation of liberty on a proper application of article 5. The court reserved its position on P but expressed sympathy with Munby LJ’s view in the Court of Appeal that he was not deprived of liberty.

Implications

The decision marks a significant departure in domestic mental capacity law:

• The “acid test” from Cheshire West is no longer good law. The proper approach is multifactorial, requiring consideration of all three Storck elements together in the individual’s concrete situation.
• Lack of legal capacity under domestic mental capacity legislation does not automatically equate to inability to give valid consent for article 5 purposes. An individual with basic awareness who can express acceptance of their living arrangements may provide valid consent.
• Restrictions in normal home or community settings, imposed for the individual’s protection and consistent with their expressed wishes, will less readily amount to deprivation of liberty than restrictions in institutional settings.
• Where individuals are wholly unable, due to their condition, to form any intention to leave (such as those catatonic, in minimally conscious states or with profound disabilities), article 5 may simply not engage as there is no “deprivation” in the relevant sense.
• The decision will materially reduce the number of cases requiring statutory authorisation under DOLS schemes, addressing the significant backlogs and resource pressures identified by the Law Commission and JCHR.
• The decision affects all UK jurisdictions through the statutory linkages to article 5, though its precise practical implementation will require careful guidance, particularly in identifying genuine consent in vulnerable individuals.
• The court acknowledged practical difficulties in eliciting wishes and feelings from those with impaired capacity and emphasised that where there is serious doubt, no inference of valid consent should be drawn. Other Convention rights (notably articles 2, 3 and 8) continue to provide protection for vulnerable adults.

The judgment is of major importance to health and social care providers, local authorities, the Court of Protection, mental capacity practitioners, and the vulnerable individuals and families affected by deprivation of liberty regimes across the United Kingdom.

Verdict: The Supreme Court answered the referred question by holding that the Minister of Health would not be acting incompatibly with article 5 ECHR in issuing the Revised Code, and would therefore be acting within competence under section 24 of the Northern Ireland Act 1998. The court overruled Cheshire West, holding that the so-called “acid test” had never been adopted by the European Court of Human Rights and was wrong in principle.

Source: Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998