A “Gilded Cage” revisited: What the new Cheshire West decision means for Scotland

For more than a decade, one of the most influential legal ideas in health and social care was captured in a simple phrase: “a gilded cage is still a cage.” That phrase came from the 2014 UK Supreme Court case known as Cheshire West, which reshaped how the law understood when a person is deprived of their liberty.

On 2 June 2026, the UK Supreme Court reversed that decision. This is an important development for families, care providers and professionals involved in supporting adults who may lack capacity to make decisions about their care arrangements.

What was Cheshire West all about?

The original Cheshire West case dealt with people who lacked the mental capacity to make decisions about their care – often individuals with dementia, severe learning disabilities, or serious mental illness.

The court introduced what became known as the “acid test.” Under this approach, a person was considered deprived of their liberty if:

• they were under continuous supervision and control, and
• they were not free to leave.

Importantly, it didn’t matter whether the person seemed content or whether the care arrangement was in their best interests. If those conditions were met, legal safeguards had to apply.

This rule was simple, easy to apply, and far-reaching. It dramatically widened the number of people considered deprived of their liberty, leading to hundreds of thousands of formal safeguards being required each year.

What has changed in relation to legal capacity in 2026?

In June 2026, the Supreme Court unanimously overturned Cheshire West. The Court decided the “acid test” was too rigid and overly simplistic.

Instead, the law now returns to a more flexible, “multifactorial” approach, meaning that professionals must look at the whole situation of the individual.

This includes:

• the type and duration of restrictions
• the purpose behind the care arrangement
• how the restrictions are applied
• and – crucially – the individual’s own wishes and feelings

Perhaps the most striking development is the recognition that a person who lacks formal legal capacity may still be able to express valid consent to their situation.

In simple terms: if someone appears happy, settled, and accepting of their care, this may count as meaningful consent and reduce the likelihood that the law sees their situation as a deprivation of liberty.

Why does the definition of meaningful consent matter?

Supporters of the new approach say it is more realistic. They argue that the previous system was overly bureaucratic, labelling too many care arrangements as legal “detentions” and placing significant strain on services.

Critics, however, warn that the decision could weaken vital protections. Some commentators fear that fewer people will receive independent oversight of their care, increasing the risk that poor or restrictive arrangements go unnoticed.

At its heart, the debate is about balance:

• protecting vulnerable individuals’ freedom and rights, versus
• allowing care systems to function practically and proportionately

A distinctly Scottish perspective

The impact of this case is UK-wide because it is grounded in Article 5 of the European Convention on Human Rights (the right to liberty).

Scotland has always taken a slightly different legislative path than other parts of the UK.

Rather than adopting the same “Deprivation of Liberty Safeguards” (DoLS) system used in England and Wales, Scotland relies on a combination of:

• the Adults with Incapacity (Scotland) Act 2000, and
• the Mental Health (Care and Treatment) (Scotland) Act 2003

These frameworks already place strong emphasis on taking account of the individual’s wishes and feelings, even where capacity is impaired.

In the 2026 case, the Mental Welfare Commission for Scotland intervened, arguing that people without full legal capacity may still be able to express meaningful views – and that those views should matter.

The Supreme Court explicitly drew on this Scottish perspective, suggesting that Scotland may, in some respects, have been ahead of the curve.

What about the Scottish Mental Health Law Review?

The Scottish Mental Health Law Review has been considering reform of mental health and capacity law for several years. A key theme of that review is the need to:

• better respect autonomy and human rights,
• reduce unnecessary restrictions, and
• ensure effective safeguards against unlawful detention

The new Supreme Court decision aligns with some of these aims – particularly its focus on personal autonomy and recognising individuals’ perspectives.

However, it also raises important questions:

• Will Scotland need to introduce clearer safeguards, similar to those lost elsewhere?
• Could a more flexible test lead to inconsistency in practice?
• And how can Scotland ensure that vulnerable individuals still have real, accessible routes to challenge their care arrangements, as required by human rights law?

Where does this leave us?

The reversal of Cheshire West represents a profound shift. It moves the law away from a bright-line rule and towards a more nuanced, but potentially less predictable, approach.

For Scotland, the decision is both reassuring and challenging:

• reassuring, because Scottish law already values individual wishes
• challenging, because it must now ensure that flexibility does not come at the cost of protection

Ultimately, the question is not just legal but ethical: how do we respect the dignity and autonomy of people who may struggle to make decisions, while still protecting them from harm?

The answer will shape the future of mental health law across Scotland—and will determine whether the balance between care and liberty is struck in the right place.

How we can help

If you wish to challenge the rateable value or have any questions in relation to this matter, please contact Caroline Pringle or your usual Anderson Strathern contact.