Commentary on the 2026 Supreme Court decision to redefine deprivation of liberty (DoL)

For BGS members and professionals looking after older people, the BGS sees the redefinition as having the following implications: 

• Determining whether a DoL exists will now require a more holistic, context-specific assessment of an individual’s care arrangements, preferences, and circumstances. BGS members are likely to play a key role in these assessments. 
• The ruling supports the principle that a lack of mental capacity does not automatically mean an individual is unable to consent to, or agree with, their care arrangements. This puts greater focus on how a person’s wishes and preferences are considered.
• The number of Deprivation of Liberty Safeguards (DoLS) applications and authorisations is likely to decrease due to the ruling, potentially reducing administrative burdens on health and social care services. 
• However, there is also a risk that some people, particularly older people in hospitals and care homes, may no longer have access to the legal safeguards currently provided through DoLS authorisations. 
• Ensuring that individuals who do not or cannot object to the way they are being cared for continue to receive appropriate protection will be essential to avoid potential breaches of their rights under the European Convention on Human Rights. 
• Healthcare professionals caring for older people who may lack capacity to consent to confinement in hospitals and care homes are left with new uncertainties and challenges about how the rights of older people should be protected in practice. Until further assessment of the ruling by the Government, clear guidance is limited. 
• Therefore, the BGS urges the Government to progress quickly with its planned review of the Liberty Protection Safeguards (LPS) framework to provide clarity and practical guidance for health and social care professionals. 

Background

In June 2026, a Supreme Court ruling changed the definition of deprivation of Liberty (DoL). This landmark case addresses a question raised by the Minister for Health in Northern Ireland about what constitutes a DoL under Article 5(1) of the European Convention on Human Rights (ECHR)¹ for adults who lack mental capacity to make decisions about their place of residence and care.

In seeking to amend the Northen Ireland Code of Practice on Deprivation of Liberty Safeguards,² the Minister sought clarity from the UK Supreme Court (UKSC) on whether an adult who lacks full mental capacity can still validly ‘consent’ to their confinement in a care setting, such that it does not constitute a DoL within the meaning of Article 5(1).

Article 5(1) ECHR provides that everyone has the right to liberty and security of person, and that no one shall be deprived of their liberty except in accordance with a procedure prescribed by law as required by Article 5(4).

In the 2004 case HL v the United Kingdom,³ the ECHR ruled that informal detention of an adult without mental capacity under the UK common law doctrine of necessity was a violation of Article 5(1) due to the absence of procedural safeguards enabling the lawfulness of the detention to be reviewed under Article 5(4). 

In response, the Deprivation of Liberty Safeguards (DoLS) were introduced in 2009 as an amendment to the Mental Capacity Act 2005 (MCA) in England and Wales (and later reflected in a 2016 code of practice  in Northern Ireland) to deal with circumstances where a person in a care home or hospital may be deprived of their liberty in breach of Article 5(1). This requires care homes and hospitals to seek authorisation from a local authority to lawfully deprive a person of their liberty.

In 2015, in the English case Cheshire West and Chester Council v P [2014] UKSC 19; [2014] AC 896⁴ (known as Cheshire West), the Supreme Court held that the ‘acid test’ for a DoL is whether an individual is subject to continuous supervision and control and not free to leave. 

In Cheshire West, the Supreme Court equated lack of mental capacity with lack of valid consent. As a result, this has meant that where a person lacks capacity to make decisions about their living arrangements, and their actual living arrangements satisfy the ‘acid test’ of being under continuous supervision and control, and not being free to leave, they are considered to be deprived of their liberty for the purposes of Article 5(1). This means their DoL must become subject to legal safeguards as required by Article 5(4).

Although Cheshire West intended to strengthen protections for adults lacking capacity by requiring new legal safeguards, the case significantly broadened the definition of DoL. This led to a marked rise in assessments and requests for authorisation to lawfully deprive a person of their liberty. During 2024/25, there were 364,900 requests for DoLS authorisation, an increase of 9.8% from the previous year. Of these, 118,000 applications were not completed within a year and only 21% were completed within the 21-day statutory timeframe.⁵

Within a year of Cheshire West, The Law Commission observed that the DoLS had already been subject to considerable criticism since introduction.⁶ This included the 2014 House of Lords post-legislative scrutiny committee report which concluded that the DoLS were not fit for purpose. 

In 2025, the UK Government announced plans⁷ to review the Liberty Protection Safeguards (LPS) during 2026. This legal framework was introduced in the Mental Capacity (Amendment) Act 2019⁸ and intended to replace the 2009 DoLS in 2022, but to date these have not been implemented. The Government’s current intention is to strengthen protections for people lacking mental capacity through major reforms designed to improve safeguarding.

European Court of Human Rights and Article 5(1)

In the current case, the UKSC considered the approach adopted by the European Court of Human Rights (the Strasbourg Court) to DoL under Article 5(1) where DoL comprises both objective and subjective elements. The objective element is met by confining a person to a restricted space for a material period. The subjective element is met where there is no valid consent to that confinement given by an individual with awareness of the situation they are in.

The meaning of valid consent, and its relationship to the domestic law concept of mental capacity, are key issues. In Northern Ireland, a person’s mental capacity to make decisions about their residence and care arrangements is assessed under the statutory test contained in Section 3 of the Mental Capacity Act 2016 (MCA 2016). This test (which is materially the same as statutory provision in the Mental Capacity Act 2005 in England and Wales) considers whether a person is unable, due to an impairment or disturbance of brain or mind function, to understand, retain, appreciate, use and weigh information relevant to the decision, and communicate that decision. 

The new Supreme Court ruling

To determine whether the Northern Ireland Minister had the power to amend the MCA2016 code of practice in relation to DoLS, the Supreme Court first had to consider whether it’s decision in Cheshire West involved a mistaken interpretation of Article 5. If it did, the Supreme Court should now correct that interpretation by overruling Cheshire West.

The Supreme Court has now ruled that the decision in Cheshire West was wrong for six reasons. 

• The acid test is not sufficient to show that there is a DoL. Determining whether an individual is subject to a DoL requires focus on a person’s concrete situation, taking account of all relevant factors, including the type, duration, effect and the manner of implementation of the measures to which they are subject. 
• It was incorrect to conclude that a person’s compliance with, or lack of objection to, is never legally relevant to the question of objective confinement, because there is overlap between the objective and subjective elements of a DoL.
• The acid test ignores the type of setting where an individual receives care and treatment, and the normality of a person’s care circumstances are relevant in assessing whether there has been a DoL.
• The acid test ignores the fact that a person may be intrinsically limited by their own physical or medical condition and fails to reflect that coercion or externally imposed restrictions may be preventing them from exercising their right to physical liberty.
• Cheshire West wrongly discounted the relevance of the purpose for which confinement is required. 
• Cheshire West was incorrect to equate lack of legal capacity with lack of valid consent. The UKSC have ruled that although a person may lack  the legal capacity to make decisions about their care and residence arrangements, they may but still have basic awareness of those arrangements to understand and communicate whether they are content with them. In such circumstances, the individual can be treated as being able to give or withhold valid consent to confinement by an expression of their wishes and feelings. 

Implications of the ruling

The 2026 Supreme Court ruling has significant implications for all health and care professionals including commissioners, care providers and local authorities. It fundamentally changes how health and care professionals should assess whether a person has been deprived of their liberty under Article 5(1), how they should determine a person’s mental capacity to make decisions about DoL, and whether DoLS authorisation is required. The ruling may also have significant consequences for individuals who may be currently subject to DoL as set out within the DoLS.

This means that:

• Existing authorisations must be reviewed, as a significant number of current DoLS authorisations may no longer be required where a person can communicate that they are content with their care arrangements
• The acid test no longer fully applies and determination of whether a person’s specific care circumstances amount to a DoL under Article 5(1) requires a full holistic assessment of their circumstances 
• The Court emphasised that a person may lack capacity under the MCA yet still understand and genuinely accept their living arrangements, such that 5 is not engaged
• Professionals must identify whether a person’s care arrangements are either being objected to or causing distress, or alternatively whether they appear settled and happy
• Restrictions that are necessary to provide clinical care and treatment are unlikely to amount to a deprivation of liberty, in contrast with restrictions imposed to confine a person against their expressed wishes
• When a person has severe disability which restricts physical control over their body, it cannot be said that they are being deprived of their liberty and therefore are unlikely to require DoLS authorisation.

Implications for clinicians responsible for care of older people

• Safeguarding deprivation of liberty is core business for care professionals responsible for the care of older people.
• The majority of DoLS applications are for older people living in care homes or on hospital wards for older people.⁹ In Wales, 87% of applications concern individuals over the age of 65, while in England the figure is 91%, with 42% of applications relating to people aged over 85.¹⁰
• Practitioners may already be struggling to fully grasp the complexity of safeguarding law as it now stands in the UK, and the current Supreme Court judgment requires careful consideration and further guidance from government. 
• This ruling is likely to have a significant impact on the Government’s current review of the 2019 Liberty Protection Safeguards. However, until further clarity is provided, health and care professionals may remain uncertain about how to best to safeguard older people under their care. 
• In the meantime, the Cheshire West acid test no longer provides a clear answer as to whether Article 5 is engaged, and practitioners cannot solely rely on supervision, control and freedom to leave when deciding if Article 5 is engaged.
• When engaging Article 5, the meaning of valid consent has now shifted which may lead to challenges to clinical assessment of capacity.
• Health and care professionals will now be required to undertake a broader assessment of a person’s circumstances and pay much greater attention to their wishes, feelings, level of awareness and lived experience when deciding if their liberty has been deprived.
• Overall, this means that DoLS applications and authorisations are likely to decline substantially, as the acid test captured large numbers of otherwise compliant people living in care settings.
• While reducing the current bureaucratic burden and cost of the DoLS, there will now be concern that, as a result of the ruling, some older people may lose access to safeguards to protect their Article 5 rights simply because they do not object to their care arrangements. 
• Professionals caring for older people in care homes and hospitals must therefore continue to ensure that they keep abreast of current developments in safeguarding law and exercise due diligence in ensuring that the autonomous choices of people in their care are properly contextualised, evaluated and understood. 

Conclusions

• The supreme court ruling removes the Cheshire West acid test and requires care professionals to exercise much greater diligence when considering if Article 5 has been engaged for people under their care.  
• The principle of respect for autonomy remains paramount in clinical decision-making across all aspects of clinical treatment and care.
• This ruling places considerable weight on professionals maintaining and deploying their holistic skills to support adults with complex clinical needs when assessing whether Article 5 rights are engaged.
• The removal of Cheshire West should empower patient and proxy involvement in clinical decision-making and is likely to further challenge notions of professional authority  in determining whether there has been a DoL within the meaning of Article 5. 
• However, the rolling back of established principles within UK safeguarding law may result in some older people losing access to the necessary protections of their human rights to liberty especially those who have complex needs and who lack mental capacity. This may lead to impaired decision making for people in need of hospital or long-term care at a time when there are already considerable challenges around inequalities of care access and outcome for older people.
• It remains to be seen whether the Government’s intentions to strengthen protections for people lacking mental capacity lead to workable changes to improve safeguarding including the implementation of the Liberty Protection Safeguards.