# Cheshire West 2 and the subjective element **URL:** \ **Category:** Mental Capacity Act\ **Tags:** agni\ **Created:** [18 November 2025 14:42 UTC](https://forum.mentalhealthlaw.co.uk/t/cheshire-west-2-and-the-subjective-element/4661 "2025-11-18T14:42:13Z")\ **Posts on this page:** 5\ **Page:** 1
**Author:** ![Jonathan](https://forum.mentalhealthlaw.co.uk/user_avatar/forum.mentalhealthlaw.co.uk/jonathan/32/88_2.png) [@Jonathan](https://forum.mentalhealthlaw.co.uk/u/Jonathan)\ **Post date:** [18 November 2025 14:42 UTC](https://forum.mentalhealthlaw.co.uk/t/cheshire-west-2-and-the-subjective-element/4661/1 "2025-11-18T14:42:13Z")
Continuing the discussion from [Cheshire West logic](https://forum.mentalhealthlaw.co.uk/t/cheshire-west-logic/4651/5): Here’s a topic to discuss this. The AGNI’s argument was that the subjective element of deprivation of liberty – “lack of valid consent” – has an autonomous ECHR meaning, and so you can give valid consent to confinement despite lacking the relevant MCA capacity. This consent would mean there is no Article 5 deprivation of liberty. The charities argued that the two are effectively the same (which is what we had all assumed before thinking about it). ---
**Author:** ![JamesCodling](https://forum.mentalhealthlaw.co.uk/letter_avatar_proxy/v4/letter/j/e95f7d/32.png) [@JamesCodling](https://forum.mentalhealthlaw.co.uk/u/JamesCodling)\ **Post date:** [18 November 2025 15:04 UTC](https://forum.mentalhealthlaw.co.uk/t/cheshire-west-2-and-the-subjective-element/4661/2 "2025-11-18T15:04:20Z")
The following article [Revisiting Cheshire West](https://www.localgovernmentlawyer.co.uk/adult-social-care/307-adult-care-features/62476-revisiting-cheshire-west) by Dr Lucy Series has some interesting arguments in favour of revisiting our understanding of ‘valid consent’ but ‘_provided_ there are adequate safeguards’ (begins halfway through the article). ---
**Author:** ![Jonathan](https://forum.mentalhealthlaw.co.uk/user_avatar/forum.mentalhealthlaw.co.uk/jonathan/32/88_2.png) [@Jonathan](https://forum.mentalhealthlaw.co.uk/u/Jonathan)\ **Post date:** [18 November 2025 15:16 UTC](https://forum.mentalhealthlaw.co.uk/t/cheshire-west-2-and-the-subjective-element/4661/3 "2025-11-18T15:16:05Z")
I haven’t read academic papers or books for over a decade, so might be failing to credit others, but I think she was the brains behind the idea, though her motivations were different. I believe her whole book ([Lucy Series, Deprivation of Liberty in the Shadows of the Institution (Bristol University Press, 2022) - Mental Health Law Online](https://www.mentalhealthlaw.co.uk/Lucy_Series,_Deprivation_of_Liberty_in_the_Shadows_of_the_Institution_(Bristol_University_Press,_2022))) was included in the Supreme Court bundle. ---
**Author:** ![JamesCodling](https://forum.mentalhealthlaw.co.uk/letter_avatar_proxy/v4/letter/j/e95f7d/32.png) [@JamesCodling](https://forum.mentalhealthlaw.co.uk/u/JamesCodling)\ **Post date:** [18 November 2025 15:36 UTC](https://forum.mentalhealthlaw.co.uk/t/cheshire-west-2-and-the-subjective-element/4661/4 "2025-11-18T15:36:25Z")
Another similar, but personal to the authors, take on valid consent can be found here [Reflections of a freelance mental capacity consultant on the Supreme Court case about deprivation of liberty – Promoting Open Justice in the Court of Protection](https://openjusticecourtofprotection.org/2025/10/28/reflections-of-a-freelance-mental-capacity-consultant-on-the-supreme-court-case-about-deprivation-of-liberty/). ---
**Author:** ![JamesCodling](https://forum.mentalhealthlaw.co.uk/letter_avatar_proxy/v4/letter/j/e95f7d/32.png) [@JamesCodling](https://forum.mentalhealthlaw.co.uk/u/JamesCodling)\ **Post date:** [18 November 2025 15:38 UTC](https://forum.mentalhealthlaw.co.uk/t/cheshire-west-2-and-the-subjective-element/4661/5 "2025-11-18T15:38:39Z")
Dr Series discusses that book here - [Deprivation of liberty in the shadows of the institution – in discussion with Dr Lucy Series – Mental Capacity Law and Policy](https://www.mentalcapacitylawandpolicy.org.uk/deprivation-of-liberty-in-the-shadows-of-the-institution-in-discussion-with-dr-lucy-series/).