Revisiting Cheshire West

As you may have heard, in October the UK Supreme Court will hear a case that will re-open consideration of what it means to be ‘deprived of your liberty’ if you may lack the mental capacity to consent to your care arrangements. It will re-visit some of the issues considered by the Supreme Court in the landmark 2014 Cheshire West case, which established the ‘acid test’ of whether a person is deprived of their liberty. In her leading judgment, Lady Hale held that a person is deprived of their liberty if they are:

1. Subject to continuous supervision and control, and not free to leave (the ‘objective element’)
2. Lacked the mental capacity to give a ‘valid consent’ to their confinement (the ‘subjective element’).

The Cheshire West case mainly focused on the objective element, but this case will re-open discussion of the subjective element (and perhaps how this interacts with the objective element).

The case started in an unusual way. Like England and Wales, Northern Ireland has a framework of Deprivation of Liberty Safeguards (DoLS) that apply in hospitals and other care settings. Because Northern Ireland is part of the UK, it is also bound by the Cheshire West ruling on the meaning of deprivation of liberty (as is Scotland, which still has no DoLS-like framework, despite it being over two decades since the original Bournewood case established the need for one).

The Attorney General of Northern Ireland made a ‘reference’ to the Supreme Court, asking it to answer the following question:

Does the Minister of Health for Northern Ireland have the power to revise the Deprivation of Liberty Safeguards Code of Practice (“the Code”) 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?

In short, they are asking whether they can introduce – through guidance (not primary legislation) – a new way of approaching what counts as a ‘valid consent’ to a situation that meets the objective limb of the Cheshire West acid test, so that this would no longer count as a ‘deprivation of liberty’ in the meaning of article 5 of the European Convention on Human Rights.

There isn’t, therefore, a ‘person’ or people at the heart of this case, except in the abstract – no set of facts on which to make a determination. It is, in essence, asking the Supreme Court to make a pure policy decision. The other parties to the case are not people whose rights are being adjudicated on, but Lord Advocate for Scotland, the Counsel General for Wales, and the Minister of Health for Northern Ireland. The intervenors are the Secretary of State for Health and Social Care (i.e. representing the English Department of Health and Social Care), the charities National Autism Society, Mencap and Mind, the Mental Welfare Commission for Scotland, and the Official Solicitor. You can read a little more about the charities’ argument here.

There are probably constitutional and legal questions about this route to reviewing an earlier Supreme Court decision, but that’s not what interests me today. I want to write about valid consent, because it’s a topic I’ve been thinking and writing about a lot since Cheshire West, including in my book (Deprivation of Liberty in the Shadows of the Institution), and several articles on this (Making Sense of Cheshire West, Liberty Tactics, and Of Powers and Safeguards). All of those books and articles are free to download and read, but to save you the trouble I’ll summarise my thoughts here.

Cheshire West was right on the objective limb

Cheshire West defined the ‘objective’ conditions that engage article 5 ECHR as being subject to ‘continuous supervision and control’ and not being ‘free to leave’. It emphasizes both locational aspects of deprivation of liberty – where the person is – and its relational aspects, how they are being restricted or confined.

I believe that this ‘acid test’ of the objective conditions of deprivation of liberty was right. It identifies situations where both a person’s residence, and their everyday choices and actions, are continuously invigilated by others. In other words – somebody always knows where you are, what you are doing, and could stop you if they wanted to.

Very few adults live under circumstances like this. In the UK, many people were outraged by the restrictions on our freedom to leave our homes during the lockdowns of the Covid pandemic. I have even heard academics and judges suggest this was a deprivation of liberty, but they must be wrong. However difficult the lockdowns were, most people enjoyed far more everyday freedom than people meeting the acid test criteria – because our freedom of action within our home was not invigilated and restricted in the same way that people are in these Cheshire West situations.  As I argue in my book, the freedoms of the home are really important, and part of what distinguishes genuine homes from (quasi)institutions.

The fact that Cheshire West applies to hundreds of thousands of people does not in itself mean that it is wrong, however much governments might wish that were so. It means we are living in a society where people in care settings experience restrictive and supervisory living situations on a scale we may not wish to acknowledge. As I outline in my book, and Lady Hale points out in the Cheshire West judgment (paragraph 2), there are historical precedents for recognizing deprivation of liberty on a similar scale. Before the de-regulatory Mental Health Act 1959, which shifted most care in hospitals and community to an ‘informal’ basis (and abolished inspection), most hospitals, nursing homes and even many private homes were categorized as places of detention if people were ‘kept as a lunatic’ there (with apologies for the language of the day).

The numbers are larger today partly because the population has grown – far more people are living with significant neurocognitive and neurodevelopmental conditions that used to be the case. In addition, people are much more likely to be cared for in ‘formal’ care settings rather than by their families (care provided entirely by family was excluded under the Victorian regulatory regime, unless they were paying someone to ‘keep’ a relative in a private home)*. The fact the numbers are so large that the system is overwhelmed, means we need to reconsider the system itself. And on this point the Labour government’s equivocation about what to do about the future of the Deprivation of Liberty Safeguards and Liberty Protection Safeguards is really frustrating.

Cheshire West was right on the need for an ‘independent check’ when people are not free to leave a place

There is a myth that percolates through discussion of Cheshire West sometimes, that the settings where it mainly applies are all benign and do not use the kinds of restrictive practices seen in mental health settings. Alastair Pitblado – the late former Official Solicitor, who acted for MIG, MEG and P in Cheshire West – used to call this the ‘roses around the front door’ image of care homes. (Update – the Official Solicitor and the Mental Welfare Commission for Scotland have been added as intervenors in the case).

I agree that most social care services are less restrictive than mental health settings, but it is flatly untrue that social care services and acute hospital settings cannot be very restrictive. It has been my own experience of working in residential services for young men with autism and learning disabilities that they can involve a very high level of physical and chemical restraint of a kind that most mental health patients do not experience – including seclusion, segregation and mechanical restraint. CQC found evidence of serious restrictive practices in residential care services for this group (Out of Sight, 2020 and 2022). Meanwhile ethnographic studies have found that people with dementia in particular experience significant levels of restrictive practice in acute hospital settings (Featherstone and Northcott, 2019 and 2022).

People living in situations where the Cheshire West acid test applies are extremely vulnerable to breaches of their human rights – from inappropriate or disproportionate restrictive practices, through to serious abuses of the kind seen in frequent institutional abuse scandals. The Care Quality Commission implicitly recognizes this in its work on Closed Cultures of Care – which it defines as places where ‘people are more likely to be at risk of deliberate or unintentional harm.’ In identifying the inherent risks of closed cultures, CQC includes criteria that echo the Cheshire West acid test – ‘services where people are unable to leave of their own accord’ and ‘any service where one-to-one care is provided’.

Internationally, it is now widely recognised that care services are places of ‘detention’ if a person is not free to leave, for the purpose of independent monitoring frameworks whose purpose is to prevent mistreatment or abuse (including OPCAT – see my book for discussion). There is longstanding national and international recognition that depriving someone of their liberty is dangerous and requires additional scrutiny to protect their rights.

So, to summarise, these are ‘objectively’ situations where we should very closely scrutinize what is happening to a person, with close attention to their human rights. As Lady Hale put it – they need an ‘independent check’. This is not currently provided by any alternative system of safeguards, from care inspection (too infrequent, not focused on individual care or restrictions), to the Care Act (only applies to a small proportion of these situations, and in any case isn’t currently focused on reducing restrictive practices or wider human rights norms), to advocacy (referrals are sparse and patchy, and do not apply in a large proportion of these situations).

Cheshire West was also right on a universal test

The Cheshire West judgment was right about something else – that deprivation of liberty must have the same meaning for a disabled person as a non-disabled person:

what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person.

Some dissenting judges in the Supreme Court disagreed with this ‘universal’ approach. But to hold otherwise is to essentially say that a disabled person may be subject to a higher level of interference with a fundamental human right before they qualify for safeguards. This is precisely the ‘comparator’ approach that the Supreme Court overturned. This is not only discriminatory, it is dangerous policy – it normalises restrictive practices for a group of people who would have immense difficulty asserting their rights and challenging inappropriate, excessive or even downright dangerous restrictions.

Since the ruling, a few judges called upon to apply the Cheshire West acid test have tried to get this logic in via the back door. At the core of their argument is a view that some people do not have volition, they lack something intrinsic in their ‘faculties’ that means they are not – in essence – a full bearer of rights. I have written elsewhere about the history of this view that the populations who are now often defined as ‘lacking capacity’ were once seen and described as ‘non-volitional’, and how this had dangerous impacts on their legal rights (‘‘Of Powers and Safeguards’’).

We can see this line of reasoning at work when Mostyn J argued that Mill’s doctrine On Liberty was only ‘meant to apply only to human beings in the maturity of their faculties … Those who are still in a state to require being taken care of by others, must be protected against their own actions as well as against external injury.’ He argued that ‘For Mill the idea that Katherine’s care in her own home involved an encroachment on her liberty would have been utterly impossible.’

We could get into how Mostyn has here conflated Mill’s work on negative liberty with what is fundamentally a republican framework for limiting arbitrary power (more on this here). Or point out that in that same paragraph Mill would also go on to argue that his doctrine would not apply to certain races, and we might therefore urge caution before adopting all of his views. But my core point is that for Mostyn, and I suspect for some other judges, people with significant cognitive impairments do not have liberty to lose.  They are – as Liat Ben-Moshe wrote about litigation in the USA – constructed as existing within a ‘prison within’, deflecting attention from their external conditions and presenting the situation as rooted in the person’s impairment, or ‘lack’.

A similar perspective seems to have informed Lieven J’s controversial ruling in the Peterborough case, where she writes that SM ‘cannot leave her bed of her own volition’ and  ‘has no volition, or free will’. The first statement conflates two distinct issues – does SM need assistance to leave her bed, and does SM have a will – a subjective point of view, and the ability to desire or not desire certain things. On the first point, many disabled people (including those with no cognitive impairments) require assistance with day to day life, including getting out of bed. I can think of several disabled professionals and activists who require support from personal assistants to go about their lives and go to work, but the key is that their assistants act on the person’s volition. Meanwhile the statement that she ‘has no volition, or free will’ suggests that SM has no subjective experience of the world – no ‘wishes or feelings’ or desires. This contrasts with an earlier comment that SM ‘does respond to stimuli, and for those who know her well it is possible to tell whether she is responding positively or negatively’.

A similar logic was employed by Parker J writing about MIG and MEG, ‘Each lacks freedom and autonomy dictated by their own disability, rather than because it is imposed on them by their carers.’ As Beverley Clough wrote this approach employs a ‘medical’ perspective to explain and justify the absence of liberty, without looking act the active restrictions imposed on them. In describing SM as lacking volition, or MIG and MEG as inherently lacking freedom and autonomy, they disqualify people with neurocognitive disabilities from the right to liberty, and deflect attention from what is being done to them by others.

Part of this may be linked to difficulties that judges sometimes have in grappling with the subjective point of view of the person at the heart of these cases. In older Court of Protection cases the judge did not even meet the person (Parker J explicitly states she did not meet MIG and MEG, I don’t think that Mostyn J met ‘Katherine’ or Lieven J met SM, although I could be wrong). Increasingly, however, judges do meet ‘P’. Some Court of Protection judges are very good at engaging with the person’s subjective perspective; we have seen some beautiful and moving examples of this in judgments and on the Open Justice Court of Protection blog. However, I notice the court is keener to do this and better at it when it involves a person who once ‘had capacity’ and no longer does (usually by looking at their written wishes or hearing from people who knew them well), or someone whom the judge can sit and have a conversation with or write a letter to. The courts struggles more with inchoate and inarticulate subjectivity, people who communicate via non-verbal means, and often their feelings or wishes can only be understood by those who take the time to know them well. Often this lies at the heart of conflicts between families and professionals – different interpretation of people’s behaviours.

We see this pattern in the two leading deprivation of liberty cases. In the Bournewood litigation, HL was consistently described as ‘compliant’, as not objecting (that was the point of the case – could he be deprived of his liberty without objecting or trying to leave). Yet other materials about his situation, including an Ombudsman’s report and the descriptions of Mr and Mrs E, reveal just how unhappy he was – for example self-injuring, with staff frequently restraining him (see this section of my book for discussion). Similarly, in the Cheshire West case itself, Parker J presented MEG as happy (or at least, not unhappy). Yet this is hard to square with the fact that she ‘attacks’ other residents – for most people, that would be a strong indication that one is not happy with those one is living with. And in the Supreme Court judgment (not discussed in the High Court or Court of Appeal at all) it is made clear that MEG ‘yearns’ to return to live with his foster mother. Her subjective experience required more analysis than treating her as content.

As I argue in my book, and in Of Powers and Safeguards, the UN Convention on the Rights of Persons with Disabilities insists that everyone – no matter what their disability – has a will, is volitional. The radical implication is that everyone has a subjective experience of the world that we have a duty to grapple with – however demanding this may be. It may well be that not all professionals are skilled at this, and certainly judges are not trained for it, but that does not mean that this should not be the focus of their analysis; it means that they should get better at it.

And only once we acknowledge that everyone has a will, everyone has volition and a subjective experience of the world, we can start to envision that liberty might have meaning for Katherine, MEG and others. Not only as something to be ‘deprived’ of, but as a positive way of being supported in the world, that aligns with their ‘will and preferences’ (to put this in the language of the CRPD). And surely, this should be the ultimate goal of any system of social care, and system of liberty safeguards?

Valid consent

It is here, I think, that my viewpoint may part ways with the respected intervenors – Mind, Mencap and the National Autistic Society – and perhaps others involved in the DoLS. It is my view that if we take seriously that everyone has a will – a viewpoint and a subjective experience of the world – then it must be possible for them to experience positive liberty as well.

I do not mean libertarian liberty – leaving P to choke on his incontinence pads or letting MIG and MEG walk in front of traffic. I mean a living situation and care arrangements that reflect what they want. By this I do not simply mean they are living where they want to be (although that is important), but they are also content with who they are living with, who is providing their care, and any measures that are intended to keep them safe. Aggression towards others (staff or residents), and needing to be restrained on a regular basis, are strong indicators that something in that situation does not align with the person’s ‘will and preferences’, because they are resisting something.

This is the basis of arguing that the ‘valid consent’ and subjective limb of Cheshire West could be revisited. In short, a lack of mental capacity does not mean a person cannot give a ‘valid consent’ to their living arrangements, provided there are adequate safeguards (on which more below).

Why would we want to recognise this? For the principled reason that it requires better engagement with the person’s subjective viewpoint, and makes it count.  Because it means the system has a positive goal – liberty – not merely a system of safeguards that regulate taking it away.

Some examples to illustrate this. In the aftermath of the ruling in HL v UK, HL’s lawyers pointed out that if he were deprived of his liberty simply because he was subject to ‘continous supervision and control’ and ‘not free to leave’, then this was equally true when he was at home and happy with Mr and Mrs E – living his best life, where he wanted to be, being supported to do what he wanted to do – as he was in Bournewood Hospital, where he was desperately unhappy, self-harming and being restrained by staff. There must, they argued, be some crucial difference between being ‘detained’ in Bournewood hospital, and being at liberty back at home.

Similarly, after the Court of Protection ruled that Stephen Neary had been unlawfully deprived of his liberty by Hillingdon Council, after confining him in a care home where he was so unhappy he tried to run away (and his dad ran a year-long campaign to get him out), the same council came back to his family after Cheshire West arguing that he was deprived of his liberty in his own home, being supported by a team of personal assistants who Stephen had a good relationship with, to do the things that mattered to him. According to his father, Stephen finds his annual DoLS assessments distressing, reminding them as they do of his earlier experiences. There are also cases about families who have turned their lives upside down to care for their relatives, oriented towards where that person wants to live and how they want to be supported. Families are understandably confused and distressed to be told they are ‘detaining’ their loved ones by doing so.

This point of view also reflects newer understandings of legal capacity, linked to the UN Convention on the Rights of Persons with Disabilities, that simply lacking ‘legal capacity’ should be linked to your ‘will and preferences’, not simply restricted because of a lack of ‘mental capacity’.

Valid consent would require substantive and procedural safeguards

The problem with this approach, is who gets to decide who is happy, and will they do it well?

For the reasons outlined above, I really sympathise with this fear. Judges and some professionals, have a pretty dire track record in this regard. HL’s doctor did not regard him as ‘objecting’ because he viewed all of his distressed behaviours as ‘pathologies’ – symptoms of autism, to be treated and managed, not communication of his distress.

So if the Supreme Court did accept that in some circumstances a person could give a ‘valid consent’ to what could otherwise be a deprivation of liberty, there would need to be robust substantive and procedural safeguards. This would align with the requirement under article 12(4) CRPD for safeguards on measures relating to legal capacity to ensure these align with the ‘will and preferences’ of the person and protect their rights. It is also, I suggest, required by the weighty considerations of article 5 ECHR, and article 8.

I am concerned that the UKSC may not itself be able to deliver these safeguards itself, although it could potentially say that valid consent was technically feasible but only if such safeguards were provided through a robust legal framework, proportionate to the important matters at stake. This is one of the reasons why it is not ideal for courts to make policy – they cannot control the implementation. And they cannot consult more widely among affected groups and experts in the field. It is a shame, for example, that no professional bodies have intervened, to bring their expert perspective.

At a minimum, the substantive safeguards (perhaps in the form of regulations and statutory guidance) would need to recognize that:

• ‘Consent’ is not mere acquiescence or a lack of objections – these may result from institutionalization, sedation, or fear.
• The use of direct physical restraint, ‘challenging behaviours’ towards staff or other residents, self-harming behaviours, are all strong indicators that a person may not be happy where they are, or with specific aspects of their care arrangements.
• If others involved in that person’s care, or know them well, think they may not be happy where they are or with their care arrangements, then they should not be treated as consenting.

Valid consent would also need to relate to both the locational part of the objective test (where a person is confined or living) and its relational aspects, how they are being restricted or confined. For example, a person might be happily living in their own home – not seeking to live elsewhere – but feel frustrated by specific measures imposed on them there (e.g. supervision and control to manage specific risks/concerns, for example to stop a person from having sex or harming others).

Another Lady Hale dictum: ‘Because of the extreme vulnerability of people like P, MIG and MEG, I believe that we should err on the side of caution in deciding what constitutes a deprivation of liberty in their case.’ In other words, if there are no positive indications that the person is happy, both with where they are cared for and how (e.g. specific restrictions, specific measures), or there are potential indications of distress or resistance, then these are strong indicators against their giving a valid consent.

And who should assess this? Part of the problem is that everyone has a potential conflict of interest – particularly those involved in commissioning or delivering the care. They may also have a partial picture – for example, family may not see how a person is within the care setting when they are not there. Different people may come to different points of view about their wishes and feelings. There will need to be accessible and effective routes to challenge an assessment (e.g. if family feel someone is unhappy but the assessor did not agree).

I suspect this framework could be worked into an adapted version of the LPS, possibly even the DoLS if we are stuck with them. But only if the government chose to properly consult on it, particularly towards robust guidance on how to assess a person’s subjective viewpoint. This would likely need primary or secondary legislation to implement.

In the end, the kinds of safeguards you would need for ‘valid consent’ may well end up looking a lot like article 5 safeguards themselves – a robust assessment by a skilled practitioner, informed by people with independence from the care delivery, and some kind of independent check on its quality. You would also want this to be kept under active review, so that if the person’s subjective viewpoint changed, then this could trigger the rest of the article 5 safeguards. The valid consent argument is principled recognition of the person's volition and their ability to enjoy liberty, not about saving on administrative costs.

Lucy Series is an Associate Professor at the University of Bristol. This article first appeared on her the Small Places blog.

* There’s often debate about whether ‘Mrs Rochester’, the wife of Mr Rochester in Charlotte Brontë’s Jane Eyre would be considered ‘detained’. If you haven’t read the novel, Mr Rochester paid Grace Pool to ‘keep’ his wife locked in an attic (before she escaped and burned the house down). According to Wikipedia the book was published in 1847, which would be after the 1828 Madhouses Act was passed by Parliament. This Act (for the first time) required that if any ‘one insane person, or person alleged to be insane’ was received into the care of anyone other than a relative, they must have an order and certificate signed by two medical practitioners. Their names were also kept on a secret register to be visited, to check on their welfare (in Yorkshire, this would have been by local justices of the peace). In practice, ‘single patients’ (as they were known) were often kept secret, precisely to avoid this regulatory intrusion into what families often wanted to keep secret (see Akihito Suzuki’s brilliant Madness at Home and Sarah Wise’s brilliant Inconvenient People for descriptions of the lives of ‘single patients’).

However, Wikipedia also tells me that although Wuthering Heights was published in 1847, its events were set earlier in the century (late in the reign of George III (1760–1820)). At that time ‘single patients’ were not directly regulated (via the 1774 Madhouses Act), only places ‘keeping’ two or more ‘lunatics’.