Is a Gilded Cage Still a Cage? Reconsidering Cheshire West and the future of disability rights.

Caitlín Quinn

They smile, they don’t object, but they are not free to leave. In law that is not consent, it is a deprivation of liberty.

However, the Supreme Court are currently deliberating on whether that smile should be enough to remove legal safeguards that protect thousands of disabled people.

Last month, the Attorney General for Northern Ireland (AGNI), supported by the Secretary of State for Health and Social Care (SoS) asked the Court to reconsider Cheshire West- the landmark ruling that reshaped how the law protects people who lack capacity.

Cheshire West introduced a simple, yet crucial principle known as the ‘acid’ test: if a person is under continuous supervision and not free to leave then the law recognises a deprivation of liberty, regardless of how caring the setting may be. With that recognition comes a system of independent safeguards.

The state’s new proposition is deceptively simple. It argues that if a person appears happy, their “wishes and feelings” should be treated as consent, even when they lack the mental capacity to understand their decision. Under this perspective, someone who appears content or compliant may no longer be regarded as deprived of their liberty, removing the safeguards designed to protect their rights.

Disability charities are sounding the alarm. In a joint statement, Mencap, Mind and the National Autistic Society warned this move “puts at risk the freedom, safety and rights of thousands of disabled people”.

Legal safeguards cannot depend on whether someone appears happy.

To understand the severity of what is at stake, we must understand why Cheshire West was necessary.

Before 2014, the law had a dangerous blind spot. In HL v UK [2004], an autistic man was ‘detained’ in hospital for months without authorisation simply because he did not resist. His compliance was mistaken for consent. He had no right to appeal and no independent oversight.

The European Court of Human Rights condemned this, exposing what became known as the Bournewood gap, a legal lacuna where people who were compliant, passive or simply unable to communicate could be confined indefinitely without oversight. Although it could affect anyone, it overwhelmingly placed disabled people at the greatest risk.

Parliament attempted to bridge this gap through the creation of deprivation of Liberty safeguards (DoLS), a legal framework that required local authorities to authorise restrictive care arrangements. However, their application was inconsistent and in practice, freedom became something discretionary rather than something protected.

Cheshire West was the response to these continuous failures. The Supreme Court drew a line in the sand and introduced the clear-cut ‘acid’ test.

Lady Hale’s emotive and powerful reminder that a “gilded cage is still a cage” placed non-discrimination at the heart of liberty law. It recognised that liberty should be defined for disabled people and non-disabled people alike.

The ruling ensured that an independent person must check whether restrictions are necessary, lawful and the least restrictive option. These safeguards ensure that disabled people have “someone to advocate on their behalf, challenge their living arrangements” and most importantly ensure their care needs are “dictated by what is best for them, not the convenience of others”.

This is the very principle of equality before the law that is now at risk.

The AGNI and SoS proposed test, where happiness could negate a deprivation of liberty, is not only riddled with uncertainty but is profoundly dangerous.

Whose measurement of happiness counts? Over what period of time? How is it measured?

Human emotions fluctuate daily and even more so for people with complex disabilities. A person may appear content when a favourite staff member is on shift, then retreat into distress when routines change. If "wishes and feelings” replace legal safeguards, then disabled people may lose protection because they had a good week.

There is no person at the centre of this hearing and so it's important to remember that these consequences are not hypothetical. IMCA revealed DoLS professionals reported that a man “appeared content” and therefore consented to ‘necessary’ care. However, when they spoke to him privately, he revealed he did not feel the restrictions were necessary and wanted to challenge his placement, he just did not know how to! This is precisely what the Cheshire safeguards exist for.

Basing legal protection on emotional presentation invites distortion and exploitation. People can be medicated into calm and coached to avoid conflict. They can be complaint because their lived world is so controlled that resistance feels impossible. Therefore, to treat such compliance as consent is not respect for autonomy, it is the abandonment of it.

The SoS and AGNI repeatedly return to the same theme that the system is overwhelmed. Last year there were 332,455 DoLS applications, compared with just 13,000 in 2013. Care Minister Kinnock describes the current system as “broken”, and “needlessly intrusive”. Similarly, the SoS argues that too many people are being swept into safeguards they do not need, leaving the most vulnerable in the backlog.

The pressure is real, however, rising numbers is not evidence that people have suddenly become unnecessarily protected. The growth instead reflects the realities of modern society, where there is better diagnosis, greater visibility of disabilities and an overdue recognition that people who once slipped through the cracks deserve independent oversight too.

The government states it wants to focus on the most vulnerable and relieve others from repeated assessments. Their concern is understandable, especially in cases such as advanced dementia where yearly assessments may feel intrusive and repetitive. However, the solution to this ‘problem’ is not to narrow who counts as deprived of liberty. That is not prioritisation, that is rationing. And rationing always risks excluding precisely the people least able to speak up when something is wrong.

Being spared an assessment may feel kinder in some cases but being placed somewhere you cannot challenge simply because you appeared content, is far more intrusive.

Of course, a system built in 2014 is struggling under 2025 realities! But an overwhelmed system is a sign that the machinery needs fixing, not that people's rights need to be regressed!

And crucially reform already exists! Parliament has approved the Liberty Protection Safeguards (LPS), designed precisely to fix the backlog by streamlining processes by allowing longer authorisations for stable cases, cutting duplicated assessments and focusing on the most vulnerable.

A national consultation on implementing LPS begins in the new year. And while this should be welcomed, it leads us to question why, then, is the Supreme Court currently deliberating narrowing the definition of deprivation of liberty before the very reforms designed to fix the system have even been tried?

Many people may instinctively agree with the AGNI and SoS proposal that DoLS are too severe. That public unease makes it easier for rights to slip quietly backwards, as few stop to question what these safeguards actually do.

Part of the discomfort comes from the label itself. Deprivation of liberty is so often misunderstood as carers and families hear the phrase and feel judged, as though the law is accusing them of wrongdoing. But the label does not judge the care; it triggers the protections.

Lady Hale addressed this directly in Cheshire West stressing that identifying a deprivation of liberty “is not a criticism of carers”, but a recognition of the disabled person’s “equal dignity and status as human beings”.

It is not a moral judgement; it is simply a safeguard that ensures no one’s rights become optional.

During the Covid-19 pandemic, society briefly experienced restriction. We demanded review, oversight and accountability. When the lockdown ended, most people regained their autonomy. However, for many disabled people this level of restriction is part of everyday life, only they do not have same power to challenge it.

That is why Cheshire West matters. It ensures that even when someone cannot meaningfully object, the law will speak for them. It recognises that liberty means the same for everyone, and when it is taken away, there must be safeguards strong enough to justify it.

Smiles do not erase restrictions, and calmness does not create consent. The people protected by Cheshire West may be vulnerable, but that vulnerability does not disappear because they appear content. This case is not simply about legal refinement. It is about whether the state is willing to keep noticing and protecting those whose rights are easiest to overlook!