Social Care Guidance for Professional Deputies Post Cheshire West

Created: 11 June 2026

Why has the landscape changed for professional deputies?

In Reference by the Attorney General for Northern Ireland [2026] UKSC 16, the UK Supreme Court reconsidered a key question in human rights law: what counts as a “deprivation of liberty” under Article 5 of the European Convention on Human Rights (ECHR), particularly for adults who lack mental capacity and live in care settings.

At the heart of the case was whether such individuals can give “valid consent” to their care arrangements—even if, under domestic law, they lack decision-making capacity in relation to their care and accommodation. This issue arose because Northern Ireland proposed updating its Deprivation of Liberty Safeguards Code of Practice to reflect a more flexible approach than the one established in the landmark case of Cheshire West (2014).

In Cheshire West, the Supreme Court introduced the “acid test” for deprivation of liberty: whether a person is under continuous supervision and control and is not free to leave. In practice, this meant that anyone lacking capacity and meeting these criteria was automatically considered deprived of their liberty, triggering legal safeguards.

However, in this 2026 decision, the Supreme Court unanimously rejected that approach. It held that Cheshire West had misinterpreted European human rights law by oversimplifying a complex, fact-specific assessment. Instead, the Court reaffirmed the Strasbourg (European Court of Human Rights) approach, which requires a multifactorial analysis of each individual’s situation. This includes factors such as the type and duration of restrictions, the setting, the person’s level of awareness, and the purpose of the care.

Crucially, the Court clarified that “valid consent” under Article 5 is not the same as legal capacity. Even individuals lacking formal capacity may still express meaningful consent through their wishes and feelings, provided they have some understanding of their situation.

The Court therefore overruled Cheshire West and held that Northern Ireland’s revised code would be lawful. The decision marks a significant shift, emphasising a more nuanced, person-centred approach to liberty in care.

How does the Supreme Court's ruling affect professional deputies?

The Supreme Court's ruling affects property and financial affairs deputies as well as personal welfare deputies. Whilst personal welfare deputies can make decisions about where a person lives, property and financial affairs deputies can often be involved in paying care fees and therefore, also involved in decisions about where a person may or may not live.

As a professional deputy, two of the standards set by the Office of the Public Guardian (OPG) are best interests of your client and interacting with your client. A best interests determination must always consider the views and wishes of the person.

As well as overturning the 'acid test' used to make a determination whether Article 5 has been engaged, the Supreme Court made a distinction between mental capacity under domestic law (Mental Capacity Act 2005) and valid consent as determined by the ECHR. The concept of valid consent has a lower threshold that mental capacity, and it is possible that some of your clients will lack capacity to make decisions in relation to their care and accommodation, but be able to provide valid consent to their care arrangements for the purposes of Article 5. Where this is the case, Article 5 will not be engaged and the safeguards provided by the Deprivation of Liberty Safeguards (or a Court Order for people living in supported living accommodation or their own home) will not be available to your client including non-means tested access to the Court of Protection, the appointment of a representative, and the right to a review of the care arrangements by the Supervisory Body.

What does the future look like for you clients?

The main consequence of the Supreme Court's decision is there will be far less people for whom Article 5 has been engaged. It is surely good that less people are deprived of their liberty. However, there is widespread concern that the safeguards a DoLS authorisation (Standard Authorisation or Court order) provided are no longer there. This is perhaps a criticism of wider adult social care processes rather and raises questions whether the current DoLS regime has been masking wider issues is adult social care. Care Act assessments and reviews should provide people with care and support needs annual reviews (or more regular if their circumstances change).

Whatever the reason, the material difference (at least in the short-term) is your clients will likely have less review of their care arrangements than they previously did.

How can Simply Social Work assist professional deputies?

The breadth of our team of senior Social Workers enables up to report on your client's care needs as well as matters relating to Continuing Healthcare (CHC) and deprivation of liberty. Our team largely consists of qualified best interests assessors with experience of undertaking assessments relating to deprivation of liberty.

To assist you further, our Client Review Service now includes the an expansion of the views of the person in relation to their care and accommodation as well as consulting family and others who know the person well. We will also explore whether we consider the person is providing valid consent to the care arrangements. This will assist you in determining whether a referral to the local authority (or Court of Protection) is required in relation to deprivation of liberty matters.

Our dedicated professional deputy services page can be found here.