The Supreme Court’s landmark judgment was handed down on 2 June 2026, following the referral by the Attorney General of Northern Ireland. 

View here: https://supremecourt.uk/cases/judgments/uksc-2025-0042

Summaries of the judgment, including commentary on some of its potential implications, have already been published by counsel instructed in the case (see links below).

In brief, however, the judgment represents a seismic change in how one determines whether a person is deprived of their liberty for the purposes of Article 5 in the UK. In overturning Cheshire West, the Supreme Court has restored a multifactorial, concrete-situation assessment, taking account of the type, duration, effect and manner of implementation of the relevant restrictions. No single factor is determinative.

The Court also held that P’s compliance, lack of objection, wishes and feelings, and contentment may be relevant, and that “valid consent” for Article 5 purposes is not the same as decision-specific capacity under the Mental Capacity Act 2005. However, where there is serious doubt about P’s views, valid consent should not be inferred.

The full implications of the judgment are still being considered, and official guidance is awaited. However, it will undoubtedly have significant effects across health and social care for those subject to the jurisdiction of the Court of Protection.

Below, Zena Bolwig (PDF Committee Member and Partner at Keystone Law) provides some initial thoughts on what property and affairs deputies may wish to consider, pending further guidance and judicial consideration, specifically in relation to applications to sell P’s property.

Impact on P&A Deputies – sale of property

The key difference for deputies considering making an application for authority to sell P’s property, is that there will be many more client’s who are not deprived of their liberty and, therefore, for whom a standard authorisation is not required before the Court of Protection can consider granting permission for sale. That may mean that there will be less delay in obtaining orders for sale, as the delays caused by awaiting standard authorisations will be avoided, but it could also mean that there will be more disputes about whether a person is or is not deprived of their liberty, which could result in similar if not more extensive delay while those disputes are resolved by the court.

Considering the judgment, it is possible to extract what I imagine the Court will look for when considering an application accompanied by an assertion that P is not deprived of their liberty.  

In my view, a professional deputy, in their application, cannot simply say, ‘P isn’t deprived of their liberty within the meaning of the AGNI judgment and so therefore no DoLs authorisation is required’. The deputy should provide the court with enough material/evidence to show that the proposed sale is not being used to cement an unexamined residence/care arrangement, and that the absence of a standard authorisation is explained by a proper Article 5 analysis. I would include:

• A clear explanation that no DoLS authorisation exists, and why; not “none has been obtained”, but “none is considered required because, applying AGNI, P is not deprived of liberty.” Ideally this should be supported by evidence from the local authority/social worker/care home or placement provider.
• A short Article 5 / deprivation of liberty analysis. This should address:

• P’s “concrete situation”: where P lives, why they live there, what restrictions exist, whether they are free to leave in practical terms, whether leaving would be prevented, whether there is continuous supervision/control, whether doors are locked, whether P goes out, how visits are arranged, whether P objects, and whether any restraint, sedation or coercion is used. 
• Evidence of P’s wishes and feelings about their current living arrangements. This is central. Include what P says, does, or communicates non-verbally about the placement; whether P appears settled; whether P asks to go home; whether P asks to leave; whether there have been attempts to leave; whether there are signs of distress, resistance or acquiescence only. A “tacit positive indication” of contentment may be relevant, but mere compliance should be treated cautiously, especially where medication or communication difficulties may mask objection.
• A statement that there is no serious doubt about P’s wishes, feelings, contentment, or any coercive restrictions. (If there are, the deputy should flag these with the LA for reconsideration of whether it is in fact a DoL and, if no progress happens/they are concerned, they could consider a dragging heels app to resolve that issue. 

• Evidence that the sale is in P’s best interests and does not pre-empt a welfare decision. The requirement to provide a copy of any standard authorisation was practically used to reassure the court that P’s move into care was settled and lawful before their home was sold. The replacement evidence should show why a return home is not realistically in P’s best interests, what alternatives have been considered, whether adaptations/care at home have been considered, and whether P’s current care/residence arrangements have been reviewed.
• Evidence of Consultation. Any evidence of consultation with relevant others in relation to the best interests decision to sell.
• Any usual market-value and financial evidence (e.g. valuations, care-fee projections, current outgoings, property costs, insurance/maintenance risks, deferred payment options, income/capital position, and why sale now is proportionate.)
• Assurances: Confirmation that if P begins objecting to the placement, asks to return home, becomes distressed about the sale, or the care regime becomes more restrictive, the deputy will pause the process of sale where possible, seek social work review, and return to court if needed.

Prepared by Zena Bolwig, Partner, Keystone Law and PDF Committee Member

Summaries of the Judgment 

Oliver Lewis, Doughty Street Chambers: here

Arianna Kelly, Victoria Butler-Cole KC and Alex Ruck Keene KC (Hon), 39 Essex: here: 

Emma Sutton KC and Rhys Hadden, Serjeant’s Inn: here

Joanne Clements KC and Zoe Gannon, 11 KBW: here