New “Multifactorial” Test for Deprivation of Liberty

In a unanimous seven-Justice judgment, the Supreme Court overruled its own 2014 decision in Cheshire West, discarding the “acid test” that had governed deprivation of liberty assessments for over a decade. The Court held that Cheshire West wrongly equated a lack of mental capacity under the Mental Capacity Act 2005 with an inability to give valid consent to care arrangements for the purposes of Article 5 ECHR — describing this conflation as the case’s “original sin.” In its place, the Court restored a multifactorial assessment: no single factor, including a person’s compliance or lack of objection, is determinative, and a person may give valid consent if they are conscious of their environment, have a basic level of understanding, and can express a view that they accept their circumstances.

The ruling arose from a reference concerning Northern Ireland’s DoLS code of practice, but its effect is UK-wide. It is expected to sharply reduce the volume of deprivation of liberty authorisations — DoLS applications reached 364,900 in 2024–25, with a backlog of over 118,000 — but disability charities including Mencap, Mind and the National Autistic Society have criticised it as “the biggest rollback of disability rights in a generation.”

Why It Matters for Expert Witnesses
Psychiatrists and psychologists conducting mental capacity assessments in Court of Protection and DoLS matters will need to apply the new multifactorial approach — weighing wishes, feelings, and the purpose and normality of a person’s circumstances — rather than the previous bright-line “continuous supervision and control” test. DHSC has confirmed interim guidance is being developed with sector partners, and the 2008 DoLS code of practice was republished on 2 June pending fuller revision. Experts should expect instructing solicitors to seek updated capacity assessments addressing valid consent directly, particularly in cases nearing authorisation renewal.

Source: communitycare.co.uk · gov.uk