What the court decided
The case was a reference by the Attorney General for Northern Ireland about a proposed revision to Northern Ireland's deprivation of liberty code. Seven Supreme Court justices heard it in October 2025, with Mind, Mencap and the National Autistic Society among the interveners. Judgment, [2026] UKSC 16, was given on 2 June 2026.
Since 2014, the Cheshire West test meant that a person who lacked capacity to consent, was under continuous supervision and control, and was not free to leave, was deprived of their liberty. That test brought very large numbers of people in care homes, hospitals and the community into the DoLS or Court of Protection systems.
DHSC's summary of the new position is:
- There is no single "acid test". Whether someone is deprived of their liberty is a multifactorial judgement that starts from the person's own situation, including the type, duration, effects and manner of the restrictions. In DHSC's words, "no single factor is determinative".
- Other relevant factors include whether the person objects, how normal the arrangements are, and whether the purpose is care.
- A person who lacks capacity under the Mental Capacity Act 2005 may still be able to give valid consent, if they are aware of their surroundings, have a basic understanding, and express a view that they accept or are happy with the arrangements. Where there is serious doubt, consent should not be assumed, and going along with care is not the same as consent.
What DHSC says providers and councils should do
DHSC's guidance page, last updated on 22 September 2026, says the changes apply with immediate effect and extend across the UK. It covers DoLS for adults in hospitals and care homes, and court-authorised arrangements in the community, including for children.
For existing cases, DHSC says:
- many current DoLS authorisations may no longer be in scope and should be reviewed as soon as practicable;
- leaving an authorisation in place while it is reviewed does not mean the person is being unlawfully deprived of their liberty;
- local authorities should record their decisions, especially when they let an authorisation lapse, and plan how to prioritise reviews and new referrals;
- where there is doubt, a referral for a DoLS authorisation or to the Court of Protection should still be made.
For care homes and other providers, DHSC asks organisations to share an accurate summary of the ruling with staff, train staff on the revised definition, review policies and leaflets, act proportionately, and keep meeting their duties under the Mental Capacity Act 2005 and the Care Act 2014.
DHSC says it will publish further guidance with practical case studies. NHS England updated its MCA and DoLS e-learning on 30 July 2026, with revised materials due by December 2026. The DoLS code of practice was republished on 2 June 2026, but DHSC notes its chapter 2 does not fully reflect the new ruling.
And the Liberty Protection Safeguards?
LPS, created by the Mental Capacity (Amendment) Act 2019, were meant to replace DoLS but have never been brought into force. In October 2025, the government said it would consult on LPS, alongside a revised Mental Capacity Act Code of Practice, in the first half of 2026. As of 27 October 2026 we could not find that consultation on GOV.UK, and the government's LPS collection page has not been updated since 2022. DoLS therefore remains the legal framework for care homes and hospitals in England.
Questions people ask
What replaced the Cheshire West acid test?
On 2 June 2026 the Supreme Court held that the 2014 acid test was incorrect. Whether someone is deprived of their liberty is now a judgement that looks at the person's own situation, including the type, duration, effects and manner of the restrictions, with no single factor deciding it.
Are the Liberty Protection Safeguards in force?
No. The Liberty Protection Safeguards, created by the Mental Capacity (Amendment) Act 2019, have never been brought into force. DoLS still applies, using the new test.
What this means for your service
- Don't stop applying for DoLS on your own judgement. Councils decide whether an authorisation is needed. Where you are unsure, refer.
- Expect reviews. Your local authority may review existing authorisations or let some lapse. Keep your own records of what changes and why.
- Keep the basics strong. The Mental Capacity Act, best-interests decisions and least-restrictive practice still apply whether or not a DoLS is in place.
- Record the person's view. The new test gives more weight to what the person understands and wants. Clear, regular recording of their wishes and reactions matters more than ever.
- Train and update. Brief staff on the change, update your MCA and DoLS policy, and watch for DHSC's further guidance.
- CQC notifications. Keep following CQC's notification guidance for DoLS, and check it if your local authority changes how it handles applications.
This is general information, not legal advice.
Sources
- UK Supreme Court, A Reference by the Attorney General for Northern Ireland [2026] UKSC 16, judgment given 2 Jun 2026 (PDF): https://supremecourt.uk/uploads/uksc_2025_0042_judgment_4f54653cf4.pdf (checked 27 Oct 2026)
- DHSC, UK Supreme Court 2026 judgment on what constitutes a deprivation of liberty (updated 22 Sep 2026): https://www.gov.uk/government/publications/changes-to-the-definition-of-deprivation-of-liberty/uk-supreme-court-2026-judgment-on-what-constitutes-a-deprivation-of-liberty (checked 27 Oct 2026)
- DHSC, Improved safeguarding and protections for vulnerable people (press release, 18 Oct 2025): https://www.gov.uk/government/news/improved-safeguarding-and-protections-for-vulnerable-people (checked 27 Oct 2026)
- DHSC, Mental Capacity (Amendment) Act 2019: Liberty Protection Safeguards collection (last updated 14 Jun 2022): https://www.gov.uk/government/collections/mental-capacity-amendment-act-2019-liberty-protection-safeguards-lps (checked 27 Oct 2026)
- Mills & Reeve via Mondaq, The government's AGNI response: what it says and what it doesn't say (30 Sep 2026): https://www.mondaq.com/the-governments-agni-response-what-it-says-and-what-it-doesnt-say/1848858 (checked 27 Oct 2026; second source)
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