Key Takeaways
- On 2 June 2026, the Supreme Court issued a judgment that changes the legal definition of a deprivation of liberty.
- The Cheshire West “acid test” is no longer the sole criterion for determining whether a person is deprived of their liberty.
- This ruling has significant implications for providers, commissioners, families, and people receiving support.
The rules for determining whether someone is deprived of their liberty have changed.
In June 2026, the Supreme Court overturned the legal test that had been used since the Cheshire West judgment, creating a significant shift in how deprivation of liberty is assessed under the Mental Capacity Act. The ruling could affect thousands of people receiving support, as well as the providers, commissioners and professionals responsible for safeguarding their rights.
This article explains what has changed, why the decision was made, and what the new approach could mean for health and social care services moving forward.
What Is Deprivation of Liberty Safeguards DoLS?
The Deprivation of Liberty Safeguards (DoLS) are a legal framework designed to protect people who lack the mental capacity to make decisions about their care and treatment. They ensure that restrictions on a person’s freedom are lawful, necessary and proportionate, while helping to balance safety with individual rights, choice and dignity.
DoLS can apply in situations where a person’s care arrangements involve significant restrictions on their daily life, such as where they live, who they spend time with, or their ability to leave a setting freely. The safeguards are intended to ensure that any limitations on liberty are carefully assessed, regularly reviewed and subject to appropriate legal oversight.
What Changed in the 2026 Supreme Court DoLS Ruling?
On 2 June 2026, the Supreme Court delivered a landmark judgment that fundamentally changed how deprivation of liberty is identified under Article 5 of the European Convention on Human Rights. In doing so, the Court overturned the long-standing Cheshire West ruling, which had shaped deprivation of liberty assessments for more than a decade.
The most significant change is that the Cheshire West “acid test” is no longer the sole basis for determining whether a person is deprived of their liberty. Since 2014, a person was generally considered deprived of their liberty if they were:
- Under continuous supervision and control
- Not free to leave
Under the new ruling, these factors remain relevant but are no longer decisive on their own. Instead, decision-makers must consider the person’s situation as a whole through a broader, multifactorial assessment. This includes factors such as:
- The type and purpose of the care arrangements
- The duration and intensity of any restrictions
- The person’s wishes, feelings and level of acceptance
- The setting in which support is provided
- The overall impact of the arrangements on the person’s freedom and daily life
The Court also confirmed that a lack of mental capacity does not automatically mean a person cannot express valid acceptance of their care arrangements. This marks a significant departure from the interpretation that followed Cheshire West and is one of the most widely debated aspects of the judgment.
Why Does This Matter?
The Cheshire West ruling dramatically expanded the number of people considered deprived of their liberty. Before the judgment, around 14,000 DoLS authorisations were recorded annually. By 2023/24, that figure had grown to approximately 400,000 people across England and Wales. Many organisations argued that the system had become overwhelmed, creating significant delays and administrative pressures.
As a result of the 2026 ruling, the government has indicated that the number of deprivation of liberty authorisations is likely to reduce significantly over time, although providers and local authorities are being advised to take a cautious and proportionate approach while further guidance is developed.
Does the Cheshire West Acid Test Still Apply?
Yes, but not in the way it did before.
The Supreme Court did not completely discard the Cheshire West acid test. Continuous supervision and control, and whether a person is free to leave, remain important considerations. However, these factors are no longer enough on their own to determine whether a person is deprived of their liberty.
Instead, decision-makers must now consider a wider range of factors, including:
- The person’s wishes and feelings
- Whether they accept the care arrangements
- The purpose of the restrictions
- The setting in which support is provided
- The overall impact on the person’s freedom and daily life
In practice, this means the Cheshire West acid test remains relevant, but it is now only one part of a broader assessment rather than the defining legal test.
What Is the New Test for Deprivation of Liberty?
Rather than relying on a single legal test, the Supreme Court has introduced a broader, more holistic approach to determining whether a person is deprived of their liberty.
Decision-makers must now consider the person’s circumstances as a whole, including:
- The nature and purpose of the care arrangements
- The type, duration and intensity of any restrictions
- The person’s wishes, feelings and preferences
- Whether the person accepts the arrangements
- The impact of the arrangements on the person’s freedom and daily life
This means that deprivation of liberty assessments will now focus less on a fixed checklist and more on the overall reality of a person’s situation. The aim is to ensure that assessments are more individualised and reflect the person’s lived experience rather than relying solely on whether they are under continuous supervision and control or free to leave.
Can Someone Be Considered to Consent Even if They Lack Capacity?
Traditionally, if a person was found to lack mental capacity to consent to their care arrangements, professionals would focus on whether those arrangements amounted to a deprivation of liberty requiring legal safeguards. However, the Court has clarified that a person who lacks mental capacity may still express wishes, feelings and acceptance of their living or care arrangements.
When determining whether a deprivation of liberty exists, decision-makers should now consider factors such as:
- Whether the person appears content with the arrangements
- Their wishes, feelings and preferences
- How they respond to the support they receive
- Whether there is any indication of objection or resistance
This does not remove the need for safeguards. Independent Mental Capacity Advocates (IMCAs), mental health assessors and other professionals continue to play an important role in protecting people’s rights and ensuring decisions are made lawfully and in their best interests. The judgment may also influence future discussions around Liberty Protection Safeguards (LPS) and how deprivation of liberty is assessed in practice.
What Does This Mean for Autism, Learning Disabilities and Dementia?
The ruling is particularly relevant for people with autism, learning disabilities and dementia, as these groups account for a significant proportion of deprivation of liberty assessments across health and social care services.
Under the new approach, professionals can no longer rely solely on the Cheshire West acid test when assessing whether a person is deprived of their liberty. Instead, they must take a broader view of the person’s circumstances, including their wishes, feelings, experiences and the overall impact of the care arrangements.
For providers and adult social services, this is likely to place greater emphasis on:
- Person-centred assessments
- Understanding a person’s wishes and preferences
- Careful consideration of the least restrictive options
- Clear documentation of decision-making processes
While the long-term impact of the ruling is still emerging, organisations will need to review how deprivation of liberty assessments are carried out and ensure that people’s rights remain central to decision-making.
Will There Be Fewer DoLS Applications?
One of the key questions following the Supreme Court ruling is whether it will reduce the number of DoLS applications submitted each year.
Since the Cheshire West judgment in 2014, local authorities have experienced a significant increase in referrals, creating substantial backlogs across many areas of England and Wales. By moving away from a single legal test and introducing a broader assessment of each situation, the Court may change how deprivation of liberty is identified in practice.
Potential implications could include:
- Fewer referrals progressing to formal authorisation processes
- Reduced administrative pressures on local authorities
- Greater focus on complex or disputed cases
- Changes to how adult social services allocate resources and prioritise assessments
However, the long-term impact remains unclear. Further guidance, case law and professional practice will ultimately determine whether the ruling leads to a measurable reduction in DoLS applications.
What Are the Concerns?
The main concern is that some people may no longer receive the same level of legal protection if their situation is no longer considered a deprivation of liberty under the new approach.
Under the previous DoLS system, a standard authorisation provided a clear route for independent oversight, including review by the supervisory body. Without that process, there are concerns that a person subject to restrictive living arrangements may have fewer opportunities for their care to be independently reviewed or challenged.
Key concerns include:
- Reduced access to legal safeguards for people who may still be highly restricted
- Greater uncertainty for providers, families and adult social services
- Inconsistent decision-making between local areas
- Less independent scrutiny from the supervisory body
- Confusion around the relationship between DoLS, the Mental Capacity Act and the Mental Health Act
Charities and legal commentators have also warned that the ruling could leave some people with autism, learning disabilities, dementia or mental health needs without the protections previously available through DoLS. The long-term impact will depend on future guidance, practice and how local authorities apply the new test.
What Should Providers Do Next?
While further guidance is expected, providers should begin reviewing their policies, assessment processes and staff training to ensure they reflect the new legal position.
Although the Cheshire West acid test is no longer the sole determining factor, organisations remain responsible for identifying situations where care arrangements may deprive a person of their liberty and ensuring appropriate legal protection is in place.
Key priorities include:
- Reviewing existing deprivation of liberty assessments and decision-making processes
- Ensuring staff understand the implications of the new ruling
- Clearly documenting the reasons for any restrictive arrangements
- Involving the person and their family members in care planning discussions wherever possible
- Seeking legal or specialist advice in complex cases involving a mental disorder or overlapping Mental Health Act considerations
- Reviewing existing authorisations and support plans where appropriate
- Continuing to explore the least restrictive options that support safety, wellbeing and individual rights
Providers should not assume that a person is free simply because they appear content with their care arrangements. Each case should be assessed individually, taking into account the person’s circumstances, whether the arrangements deprive them of their liberty, and the level of legal protection required to safeguard their rights.
Catalyst Care Group Is Here to Support You
At Catalyst Care Group, we support people with multiple needs in complex situations, with or without mental capacity. We specialise in promoting people’s safety, autonomy, and dignity by protecting the rights, freedoms, and unique choices of every person we support. Through our therapeutic, multidisciplinary teams, we support people to be active decision-makers in their own lives, choosing how and when they receive support, make everyday decisions, build meaningful relationships, and live the life they want in their own communities.
FAQ
Do existing DoLS authorisations still apply?
Yes. Existing DoLS authorisations remain legally valid and do not need to be automatically reassessed because of the Supreme Court ruling. They will continue until they expire, are reviewed or are lawfully terminated.
Will Liberty Protection Safeguards replace DoLS?
Not yet. Although Liberty Protection Safeguards (LPS) were introduced through the Mental Capacity (Amendment) Act 2019, they have not been implemented. DoLS therefore remains the legal framework used to authorise deprivations of liberty in care homes and hospitals.
What does the Supreme Court ruling mean for care homes?
Care homes should expect fewer situations to automatically qualify as a deprivation of liberty. Staff can no longer rely solely on the Cheshire West acid test and will need to consider a wider range of factors before deciding whether a DoLS authorisation is required.
What does the ruling mean for supported living services?
Supported living services are likely to be among the most affected settings. Many arrangements that previously met the Cheshire West criteria may now require a more detailed assessment before being considered a deprivation of liberty. This could result in fewer referrals for formal authorisation, although the long-term impact remains uncertain.
How will providers assess deprivation of liberty now?
Providers will need to apply a broader assessment rather than relying solely on whether a person is under continuous supervision and control and not free to leave. They must also consider the person’s wishes, acceptance of the arrangements, the purpose of the restrictions and the overall impact on the person’s freedom.
