Protecting Rights and Dignity: The Debate Around Deprivation of Liberty

In health and social care, the concept of deprivation of liberty sits at the heart of how we balance personal freedom with the need to protect individuals who cannot make certain decisions for themselves. 
It raises profound questions about autonomy, safety, and human rights, especially for those living with learning disabilities, autism, dementia, or mental health conditions.

A deprivation of liberty occurs when someone who lacks the mental capacity to decide about their care or treatment is under continuous supervision and control and is not free to leave their placement. 
This principle is grounded in Article 5 of the European Convention on Human Rights, which safeguards every person’s right to liberty and security. 
Yet it also recognises that in certain circumstances, restricting liberty may be lawful if it protects an individual’s welfare when they cannot make safe decisions independently.

To ensure such restrictions are lawful, proportionate, and accountable, the Mental Capacity Act 2005 introduced the Deprivation of Liberty Safeguards (DoLS) in 2009. 
These safeguards provide a legal framework for authorising and reviewing situations where someone’s liberty may need to be restricted in their best interests. 
They require thorough assessments, independent oversight, and regular reviews to make sure that any restrictions are necessary, justified, and represent the least restrictive option.

The Cheshire West Ruling

A landmark moment came in 2014 with the Supreme Court’s decision in P v Cheshire West and Chester Council and P and Q v Surrey County Council. The case examined whether individuals with learning disabilities and autism were deprived of their liberty in settings designed to care for and protect them.

Lady Hale, delivering the leading judgment, famously stated that “a gilded cage is still a cage.” Her words underscored that even well-intentioned, comfortable, or caring environments can still constitute a deprivation of liberty if the person under care is subject to continuous supervision and control and is not free to leave.

From this decision emerged what became known as the acid test:

1.     Is the person under continuous supervision and control?

2.     Is the person not free to leave?

If both answers are “yes,” the situation is considered a deprivation of liberty, regardless of the person’s apparent contentment or willingness to remain in their placement. This ruling significantly broadened the scope of who falls under DoLS protection, ensuring greater legal scrutiny and safeguarding for those who may otherwise have limited say in their care.

The DHSC’s Intervention

In October 2025, the Department of Health and Social Care (DHSC) formally intervened in a reference case before the Supreme Court, asking it to set aside or depart from the Cheshire West decision. According to the DHSC, the 2014 ruling has become too rigid, while the European Court of Human Rights takes a more flexible approach that considers the full context of a person’s life and situation.

Officials argue that under the current interpretation, many people who are happy with their care, do not wish to leave, and are not at risk, are still brought under the Deprivation of Liberty Safeguards. 
They say this has resulted in “needless intrusion” into people’s lives and an unnecessary administrative burden on local authorities and providers.

You can read more about this intervention in Community Care’s article: DHSC urges Supreme Court to overturn 'clearly wrong' Cheshire West ruling on deprivation of liberty.

However, leading disability and mental health organisations have strongly opposed the DHSC’s stance. In a joint statement, Mencap, Mind, and the National Autistic Society described the move as “deeply troubling,” warning that it risks removing vital safeguards for disabled people who cannot advocate for themselves.

They argue that the Cheshire West decision, while far-reaching, ensures proper scrutiny and legal oversight wherever a person’s liberty may be restricted. Without these protections, vulnerable people could face limitations on their freedom without independent review or recourse.

Further details on their position can be found in Mencap’s article: Government legal case has put disability rights at risk