Supreme Court judgment changes the law on deprivation of liberty safeguards

For around 12 years, care providers have been familiar with the “acid test” in deprivation of liberty safeguards (DoLS) matters. In simple terms, the test considered whether a person was subject to continuous supervision and control and whether they were free to leave the placement where their care was being provided. If not, they were treated as being deprived of their liberty and valid consent was required. Where the individual lacked capacity, they could not give that consent, meaning the provider would need to apply for and obtain a DoLS authorisation.

The “acid test” was established in 2014 by the Supreme Court in Cheshire West. Following that decision, applications for DoLS authorisations increased significantly, to well over a quarter of a million each year, as did the backlog in processing them.

The effect of Cheshire West was that it did not matter if a service user who lacked capacity was happy where they lived, whether their care arrangements were in their best interests, or whether their placement resembled ordinary family life. The approach was, in effect, no capacity, no consent.

Fast-forward to June 2026 and the Supreme Court has taken a markedly different approach, overruling Cheshire West.

Key points

The decision that overruled Cheshire West was in a case called A Reference by the Attorney General for Northern Ireland, which we refer to in this article as the “Attorney General’s case”. It changes the way care providers need to approach DoLS matters, particularly where service users lack capacity. It is one of the most significant developments in mental capacity law since Cheshire West itself.

While individuals may lack legal capacity under the Mental Capacity Act 2005, the Supreme Court has confirmed that they may still be able to give valid consent to their care arrangements. The Attorney General’s case therefore narrows the circumstances in which DoLS authorisations are required.

Observations

The Attorney General’s case means care providers will need to use a multifactorial assessment. This assessment must focus on the individual’s specific situation and should include factors such as:

• the nature and duration of the restrictions;
• the effect on the individuals;
• the manner in which the restrictions are implemented;
• the level of supervision;
• opportunities for social interaction;
• the degree of control exercised;
• the overall context of the placement.

Previously, if an individual was considered to lack capacity under the 2005 Act, a DoLS application would almost certainly be required. The Attorney General’s case confirms that a person who lacks legal capacity may still understand their living conditions. If they are conscious of their environment, have a basic understanding of their circumstances and can express their views, those views should be taken into account when assessing whether they are deprived of their liberty.

The decision makes clear that a lack of legal capacity does not, in itself, prevent a person from being capable of giving valid consent for the purposes of their right to liberty under Article 5 of the European Convention on Human Rights.

What next?  

Following Cheshire West, the time and cost involved in making DoLS applications meant care providers were often diverting resources towards obtaining legal authorisations, rather than focusing those resources on frontline care. Regulatory compliance remains necessary and important, but resources should not be diverted unnecessarily from the essential services provided by the care sector.

Care providers should now re-evaluate whether existing care arrangements genuinely amount to a deprivation of liberty. In practice, the Attorney General’s case may reduce some of the administrative burden created by Cheshire West, helping providers to save time and cost, use resources more efficiently and focus on what matters most: frontline care for service users.

Implications for care providers

While the 2026 judgment is a significant development for the care sector, it does not provide the same clear framework as the Cheshire West “acid test”. That creates a risk of inconsistency. The “acid test” set out clear principles, which is one of the reasons it became so widely accepted.

The Attorney General’s case may lead to disputes about interpretation. For example, the CQC is not guaranteed to agree with a provider’s multifactorial assessment. There is no one-size-fits-all approach following the judgment, so those carrying out assessments should keep clear records of their findings and be able to show that they have carefully and properly applied the multifactorial assessment.

The Attorney General’s case represents an important move away from the cautious approach adopted after Cheshire West. The focus is now on an individualised assessment, taking into account the person’s own position, experience, wishes and acceptance of their care arrangements.

If you require further information or advice about the law applicable to DoLS, particularly in light of the Attorney General’s case, please contact our Regulatory team.

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