Abstract In A Reference by the Attorney General for Northern Ireland [2026] UKSC 16, the Supreme Court invoked the 1966 Practice Statement to overrule Cheshire West, holding that an adult who lacks the mental capacity to decide upon their care arrangements may nonetheless give valid consent to confinement, for the purposes of the subjective element of Storck v Germany, by manifesting contentment with those arrangements. This article argues that the decision is wrong twice over. Conceptually, it commits a category error: across the law, consent is a communicated legal power conditioned upon capacity, and contentment is a mental state which exercises nothing. Normatively, it produces unequal protection: the conditions upon which a capacitous person may be taken outside Article 5 are policed with rigour, while a disabled person may now be removed from its protection upon an inference about their mood, drawn by those who confine them. The article reads the Strasbourg tacit-acceptance cases as capacity-sensitive, examines the court’s selective re-evaluation of MIG, MEG, and P, and answers the defences of workability and residual protection. The cure for Cheshire West’s burdens was a better scheme of safeguards, not the evisceration of consent.
Maternity care in the UK continues to confront profound and systemic failings, despite decades of legal and ethical commitments to patient-centred care. This article demonstrates that these failings are not simply operational or episodic but stem from an entrenched institutional culture of paternalism that routinely suppresses women's autonomy. Drawing on major maternity inquiries alongside empirical studies documenting women's experiences of pregnancy and childbirth, the paper illustrates how women's voices are silenced, alternatives withheld, and concerns minimized-particularly for those from racialized or otherwise marginalized groups. These patterns reveal that autonomy, as currently conceived and practiced, remains largely procedural and illusory. The article argues that the dominant 'individualistic' model of autonomy cannot withstand the relational, emotional, and structural realities of pregnancy and childbirth, nor counter the gendered and hierarchical assumptions embedded within NHS practice. It proposes instead a shift towards a relational understanding of autonomy-one that recognizes vulnerability, prioritizes communication and trust, and situates decision-making within wider social and institutional contexts. Only by transforming the cultural foundations of maternity care can the promise of genuine autonomy and safe, respectful care be realized.
