The most significant legal development relating to the Mental Capacity Act this year has been the Supreme Court's decision in A Reference by the Attorney General for Northern Ireland (Deprivation of Liberty) [2026] UKSC 16.

At this year’s Switalskis MCA Conference, Jonathan Bellamy of St John’s Buildings delivered his carefully considered thoughts on the judgment and the developments we have seen in the months following.

Many practitioners had hoped that either the courts or the Government would provide clarity following the Supreme Court's decision. As Jonathan Bellamy explained at the outset of his session, that clarity has yet to materialise.

An introduction and overview

Mr Bellamy began by taking the audience through the legal journey that ultimately led to the Northern Ireland case, starting with HL v United Kingdom 45508/99 [2004] ECHR 471 and the "Bournewood Gap", before moving through the implementation of DoLS, Cheshire West and the impact of the Acid Test.

The overview provided valuable context, illustrating how the law developed before Cheshire West and why many commentators now consider the legal position to have shifted back towards that earlier approach following the Northern Ireland decision.

Mr Bellamy then summarised the judgment, outlining the new multifactorial test and examining how the Supreme Court applied it to the individuals at the heart of Cheshire West .

Developments in the months that followed

Shortly after the judgment, the Department of Health & Social Care provided guidance , covering what a person’s objections may look like and the degree of nuance involved in the assessment.

Since the Supreme Court's decision, several reported judgments have begun to explore how the multifactorial test should operate in practice. While many are Tier 2 decisions and therefore not binding, they offer early indications of the issues that courts are grappling with.

•  Re Mustafa (a child) [2026] EWHC 2159 (Fam)

•  Essex County Council v ST (Deprivation of Liberty) [2026] EWHC 2328 (Fam)

•  Oxfordshire County Council v P [2026] EWCOP 33 (T2)

•  Re AR [2026] EWCOP 45 (T2)

•  Derby City Council v SM [2026] EWCOP 46 (T2)

•  Re BM (Deprivation of Liberty) [2026] EWCOP 48 (T2)

•  Re PK & MK (Article 8 Protections) [2026] EWCOP 52 (T2)

•  TW v Worcestershire County Council [2026] EWCOP 54 (T2)

One observation emerging from these judgments is that there remains no clear position on the factor of "relative normality" and how "normal" should be assessed. There is disagreement as to whether normality should be judged by reference to an individual with similar circumstances and disabilities.

Another troubling issue concerns how the effect of restrictions on an individual is assessed, and how effectively professionals and the court can truly get to know P in order to understand the motivations behind what they say and do. Mr Bellamy mused on whether there is a danger that those who "bang on the doors" receive the protections of Article 5, while those who suffer in silence do not.

We are also left with the concept that those lacking legal decision-making capacity can give valid consent to their confinement so long as they have a ‘basic level of awareness and consciousness of their living arrangements that is sufficient to enable them to know and communicate whether they are happy or unhappy with them’ . The practical application of this principle remains unclear, and Mr Bellamy suggested that further guidance from the Court of Appeal may ultimately be required.

What the future holds

The Supreme Court observed that even in the absence of Article 5, an individual in care has other relevant Convention rights which should afford them with protection and appropriate reviews of their interests. Whether those protections will prove sufficient remains to be seen.

One consequence already becoming apparent concerns access to the courts. Where Article 5 is not engaged, non-means-tested legal aid is no longer available, potentially creating significant barriers to challenging care and residence arrangements.

The Government has indicated that there are no legislative plans to address the judgment. In respect of the Liberty Protection Safeguards scheme intended to replace the DoLS, the Government has said they are assessing the implications of the judgment, and they will set out their plans as soon as possible.

Given that the Government actively encouraged the Supreme Court to revisit Cheshire West , the lack of a clear response to the consequences of the judgment is difficult to ignore.

As Mr Bellamy's presentation demonstrated, practitioners are continuing to grapple with difficult questions around relative normality, consent, objections and access to safeguards. In that respect, the questions raised by the judgment may ultimately prove more significant than the answers it provided.