Deprivation of Liberty After Cheshire West: What the Supreme Court’s Ruling Means for Brain Injury
Written by Louise Hawkley — MSc Rehabilitation (Neuro), BSc (Hons.) Occupational Therapy · RCOT & BABICM member
For twelve years, the Cheshire West judgment set the standard for deciding when someone in a care or rehabilitation setting was being deprived of their liberty. On 2 June 2026, the Supreme Court overruled it.
The decision, handed down in Attorney General for Northern Ireland [2026] UKSC 16, changes how deprivation of liberty is assessed for people who lack mental capacity. For brain injury case managers, families, and solicitors involved in personal injury cases, the change has direct practical consequences.
What the Cheshire West judgment said
The 2014 ruling established the "acid test": a person was deprived of their liberty if they were under continuous supervision and control and were not free to leave. The circumstances of the person’s life, and what was in their best interests, were irrelevant to that test.
This led to a large increase in Deprivation of Liberty Safeguards (DoLS) applications, with local authorities overwhelmed by demand. The Law Commission recommended replacing DoLS with a new system called Liberty Protection Safeguards, though that reform has not yet been enacted.
What has changed
The June 2026 ruling abandons the acid test entirely. Whether a person is deprived of their liberty must now be determined through a broader assessment: considering the purpose, nature and impact of any restrictions, alongside whether the person consents or can give valid consent to their situation.
That last point is genuinely new. Under Cheshire West, consent was irrelevant if a person lacked capacity under the Mental Capacity Act. The Supreme Court has now held that a person may give valid consent even without full MCA capacity. They do not need to pass the formal capacity test. A basic understanding of their circumstances and the ability to express their views may be enough.
The court was clear, though, that valid consent requires more than passivity. Not objecting is not the same as consenting. Coercion of any kind, including subtle pressure from staff or family members, would invalidate consent entirely.
What this means for brain injury
Brain injury presents a complicated picture when it comes to capacity and consent. Someone in the early stages of recovery from a severe traumatic brain injury may have no capacity at all under the MCA. Someone three years into rehabilitation may have fluctuating capacity, or capacity for some decisions but not others. Someone living in the community with support may understand their situation well enough to express genuine views about where they live and who provides their care.
The Supreme Court also addressed cases where a person has no physical control over their body, for example following a severe acquired brain injury or stroke. In those situations, the court said it cannot sensibly be said that a person is being deprived of their liberty. This narrows the range of cases that will require DoLS authorisation.
For everyone else, the focus falls on careful, documented clinical judgement. Professionals need to consider whether the person objects to their circumstances, whether they express wishes to stay or go, how they respond when they see others leaving, and what the overall impact of restrictions is on them as an individual.
What has not changed
The Mental Capacity Act remains fully in force. Capacity should still be assumed unless there is evidence to the contrary. Best interests decisions still apply where capacity is genuinely absent. The duty to choose the least restrictive option does not go away because fewer cases will meet the DoLS threshold.
Several disability charities, including Mencap, Mind and the National Autistic Society, have described the ruling as the biggest rollback of disability rights in a generation. Their concern is that reducing formal oversight creates conditions for restrictive practice to go unchecked. That concern is legitimate, and good independent case management should provide exactly the kind of scrutiny that formal DoLS authorisation previously required.
The case management role
At Hawkley Rehab, much of our work involves people who are navigating rehabilitation in settings where restrictions are in place for their safety. The new framework does not reduce our responsibility to understand and document capacity, to record a person’s wishes and feelings accurately, or to advocate for the least restrictive approach. If anything, it places more weight on the quality of clinical judgement rather than on a checklist.
For more on how we work with clients and families through rehabilitation, read How We Work or find out more about our Immediate Needs Assessment process.
