Navigating the 2026 Supreme Court Deprivation of Liberty Judgment: A Guide for Social Care Providers
The legal framework for determining whether someone is deprived of their liberty has recently undergone a major transformation. On 2 June 2026, a landmark Supreme Court judgment overturned the long-standing 2014 "Cheshire West" ruling, which developed the well-known ‘acid test’ practitioners previously needed to work to.
As a result, the previous "acid test" can no longer be followed. The Supreme Court has declared that assessing whether care arrangements amount to a deprivation of liberty now requires a broader, “multifactorial” approach. In an additional significant change, the court has declared that someone who formally lacks capacity (within the meaning of the Mental Capacity Act 2005) to make decisions about their care and residence can nonetheless provide legally valid consent to their confinement in some circumstances.
New DoL Test and DHSC Guidance
The Department of Health and Social Care (DHSC) has released preliminary guidance on the new DoL test. More detailed guidance is expected in the coming months.
Multifactorial Assessment: The first step when considering if someone is deprived of their liberty requires a comprehensive assessment of their individual circumstances, considering:
The specific situation of the individual.
The type, duration, effects, and implementation of any restrictions.
The relative normality of the situation, such as a home environment versus a hospital setting.
The Principle of Valid Consent
Next, consideration must be given to whether the individual is consenting to these arrangements. Capacity to make decisions about care and residence is no longer a necessary element of valid consent.
Criteria: The person must be conscious of their environment, have a basic understanding, and be able to express a view.
Objection: An active objection, whether verbally or communicated through behaviour, is likely to mean the individual is not consenting to the arrangements. Examples include attempts to leave, refusing care, physical restraint. Special consideration needs to be given to whether someone is receiving medication that makes them less able to object.
Recommended Actions for Care providers:
Record-Keeping: When evaluating care plans, it is important to document clear, objective evidence of whether an individual is actively objecting to their care. Detailed records of wishes, feelings, and behaviour are now critical for assessments.
Workforce Training: Upskill staff on the new definition. An NHS England e-module is expected by late July.
Policy Review: Review and update internal policies, protocols, and public-facing documents.
Advocacy and Protection: Individuals who are no longer considered to be deprived of their liberty are still protected by other statutory frameworks, including the Mental Capacity Act, the Care Act, and safeguarding procedures. Ensure that independent advocacy is offered to help individuals express their choices.
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