For more than a decade, DoLS have provided an important legal framework for protecting some of the most vulnerable people receiving care. Introduced as part of the Mental Capacity Act (2005), DoLS provide a legal framework to ensure that where a person’s freedom is restricted for their safety and wellbeing, those restrictions are necessary, proportionate and subject to appropriate checks.
However, a landmark Supreme Court ruling has now changed the way deprivation of liberty should be assessed, meaning care providers may need to rethink how they approach restrictions, consent and safeguarding in practice.
The facts of the case
Since 2014, care providers have worked within the framework established by the landmark Cheshire West and Chester Council v P Supreme Court judgment of 2014. This judgment introduced the widely known ‘acid test’, which meant that a person could be considered deprived of their liberty if they were under continuous supervision and control and were not free to leave – regardless of whether they appeared happy, settled or well cared for.
The latest Supreme Court judgment represents a significant shift, moving away from a single test and towards a broader assessment of an individual’s circumstances. Instead, professionals must take a broader, more individualised approach, considering multiple factors including the nature of any restrictions, how long they are in place, their impact on the person, how they are implemented and the individual’s own wishes and feelings.
Update from the regulator
The Care Quality Commission (CQC) has acknowledged that the judgment represents a significant development for providers, advising organisations to familiarise themselves with the changes and review their approach where necessary.
CQC states, ‘Providers need to familiarise themselves with this legal development and adjust their practice accordingly. We recognise that this judgment may lead to questions about how the different factors should be interpreted and applied in practice. Where appropriate, providers may need to obtain legal advice to ensure that they are compliant with the law while they are waiting for any official guidance to be published.’
Implications for care providers
One of the most significant elements of the ruling is the court’s consideration of consent. The judgment clarifies that a person who lacks capacity under the Mental Capacity Act may, in certain circumstances, still be able to express acceptance of their care arrangements if they understand their situation and are able to communicate that they are content with it. However, where there is genuine doubt about whether valid consent exists, safeguards and appropriate assessments remain essential.
The ruling has immediate implications for care providers, health and social care professionals and organisations responsible for supporting people who may lack capacity. Existing assessment processes, policies, training materials and approaches to identifying possible deprivation of liberty may all need to be reviewed to ensure they reflect the new legal position.
The ruling has prompted a mixed response across the sector. While some welcome a more individualised approach that places greater emphasis on a person’s wishes and circumstances, others have raised concerns about whether changes could weaken important safeguards for people who may be unable to advocate for themselves.
Disability rights organisations have expressed concern that the ruling could reduce independent oversight for some of the most vulnerable people receiving care, arguing that safeguards remain essential to prevent people being overlooked.
As care providers begin to understand the practical implications of this significant legal development, questions remain around how the new approach will affect day-to-day decision-making, assessments, documentation and safeguarding responsibilities.
The ruling has caused some confusion and a huge amount of debate about the immediate impact of it. The regulators felt they could not advise and providers should seek legal advice whilst local authorities waited for guidance from Government. Not hugely helpful for providers who are on the frontline. The confusion arose from Cheshire West being superseded by the Supreme Court judgment as it implied that fewer DoLS would now be needed. The reality is that DoLS remains as part of the legal framework and the Mental Capacity Act continues to be part of the mechanism for the authorisation of DoLS for over 18s and those in care settings and hospitals. The Supreme Court judgment challenged the acid test applied by Cheshire West had moved away from European case law. It questioned the authenticity of a single test and found that it needs to move to a more holistic pathway to decision. It questioned the degree of control over the overall situation of the individual and any control over their wishes, i.e. coercion or control and restrictive settings. The fundamental question it asks is about ‘valid consent’ and the acceptance of a situation by an individual. We must proceed with caution as providers because the law has been changed by the judgment which was handed down but guidance and practice will take time to catch up. We must not panic – look at the judgment and make any reasonable adjustments which includes ensuring our workforce are up to speed on it. An individual’s situation will be looked at as a whole; it cannot be assumed that DoLS is not needed, our duty of care remains. The difference will be that the assessment will need to be carried out under the new multifactorial legal approach and authorisation follows the existing route. An individual being settled and appearing happy is not sufficient as there is a duty to consider feelings, objections, coercion, distress etc., especially as the guidance develops. Nadra Ahmed CBE, Executive Co-Chairman, National Care Association. Email: [email protected] Linkedin: @National-Care-Association
The Attorney General for Northern Ireland (AGNI) judgment has introduced a new legal test for determining whether someone is deprived of their liberty, which means that the Cheshire West acid test must no longer be followed. Providers therefore need to ensure that they understand the AGNI judgment and that they apply the new legal test carefully. The test is a ‘multifactorial assessment’ which is a holistic assessment considering multiple factors to determine whether or not someone is deprived of their liberty. CQC has said that it will take a proportionate approach in its assessments while national guidance develops in this area, but providers should be aware that there is likely to be enhanced regulatory scrutiny. In practical terms, providers therefore need to review individuals on a case-by-case basis to determine whether or not they are deprived of their liberty. To do this, they need to ensure that the steps set out in AGNI are followed and that care documentation clearly records residents’ wishes and feelings as well as reflecting any objections. Documentation needs to demonstrate how residents’ views have been considered and why any restrictions are necessary. Providers also need to update their policies on deprivation of liberty, ensuring that any references to the former Cheshire West acid test are removed and that the language in the policy aligns with the AGNI judgment. Staff also need training and upskilling in relation to the new legal test. There will be a period of adjustment before a full understanding of the impact of AGNI can be known. In the meantime, providers should continue making DoLS referrals where necessary. Councils will also be considering how to prioritise reviews for new referrals and cases which are coming to the end of their authorisation. I advise providers to refer to the Department of Health and Social Care’s interim guidance titled, UK Supreme Court 2026 judgment on what constitutes a deprivation of liberty (dated 15th June 2026), whilst we await publication of further guidance. Anna Fee, Senior Associate, RWK Goodman. Email: [email protected] Linkedin: @RWK-Goodman