Joint statement on Cheshire West ruling, SASW and SWS

This decision marks a substantial shift in how deprivation of liberty is understood under Article 5 ECHR. It introduces a more nuanced, multi‑factorial approach and recognises that individuals who lack formal decision‑making capacity may nevertheless be capable of expressing a form of “valid consent” through their wishes and feelings. While this development reflects a more contextual reading of liberty and autonomy, it also creates uncertainty and increases the risk of inconsistent interpretation in practice. Some of this uncertainty needs to be carefully considered and understood.

We are working in partnership with colleagues from across the sector to understand all the impacts this decision will have on practice in Scotland. We are also keen to understand the views of the third and independent sector about how they see the judgment affecting the people they support.

Once work to gain a full picture of the impact, which is complex, has been completed, we will be asking policymakers and employers to ensure there is clarity and suitable guidance for our members and the profession more broadly. There may also be a need for changes in national guidance, but these will need to be carefully thought through.

We will provide a further joint update on the Cheshire West judgement in the next few weeks.