June 4, 2026

Landmark supreme court ruling on deprivation of liberty law

Posted in Dispute Resolution, Health and Social Care

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Anna Fee

Senior Associate

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The Supreme Court has unanimously overturned the P v Cheshire West and Chester Council [2014] UKSC 19 decision and removed the single “acid test” to determine whether or not someone is deprived of their liberty.

Previously, an individual was deemed to be deprived of their liberty if they were subject to continuous supervision and control and not free to leave. This was known as the Cheshire West “acid test”. It was also based on the view that, for the purposes of the subjective element, a person who lacked capacity under the Mental Capacity Act 2005 could not give valid consent.

Now, the Supreme Court has determined that the “acid test” for identifying the objective element of deprivation of liberty was wrong. Instead, a multifactorial assessment must be undertaken and grounded in an individual’s specific circumstances to determine if they are deprived of their liberty. The multifactorial assessment takes into account a range of factors including: the type, duration, effects and manner of implementation of the measures in question.

The Court also held that valid consent for the purposes of the subjective element of the Article 5 ECHR (right to liberty) test is not the same as legal capacity under the Mental Capacity Act 2005. It is now a much lower test based on a person demonstrating a basic level of awareness of their circumstances and communicating acceptance of their care arrangements.

Paragraph 53(ii) of the judgment explains why valid consent is a powerful factor in the assessment stating that, “…The fact that an individual lacks legal capacity to decide on their living and care arrangements does not necessarily mean that they are… unable to understand and consent to those arrangements in a manner that prevents those arrangements from becoming a deprivation of liberty...”. Conversely, “if such a person manifests a view that they do not accept that situation, that opinion should also be respected and will usually lead to the conclusion (if the objective circumstances indicate that they are detained) that they are subject to a deprivation of liberty” as stated in paragraph 151 of the judgment.

What does the Supreme Court ruling mean for providers?

The legal test for deprivation of liberty is now broader and less formulaic, marking a significant shift in the legal landscape.

There will be many individuals who are currently subject to Deprivation of Liberty Safeguards (“DoLS”) authorisations or deprivation of liberty court orders who are not in fact being deprived of their liberty. These people will need their cases reviewed as soon as possible by the courts, local authorities and NHS bodies.

Part 8 reviews under DoLS are the formal mechanism for reassessing whether a person’s care arrangements and restrictions still meet the legal criteria for detention. Given the number of DoLS authorisations which will need to be reviewed, this will likely lead to a significant increase in the number of Part 8 reviews requested by care providers from Best Interests Assessors (“BIAs”).

Mental capacity assessments in respect of deprivation of liberty will need to apply the Supreme Court’s revised approach to determine whether an individual is deprived of their liberty. This will take time given the high volume of people who are currently deprived of their liberty.

Although the ruling takes effect immediately, there is likely to be a period of uncertainty while public bodies consider the judgment’s practical implications and develop guidance.

Providers do not need to rush into making major changes to care plans or policies before official guidance is available. However, in the interim, they may wish to review how they identify potential deprivation of liberty cases and how they record a person’s wishes and feelings. Care records should clearly document how a person presents, what they say or communicate about their care, and whether there is any indication of objection, distress, coercion or restraint.

Conclusion

The Supreme Court decision is likely to narrow the scope of what amounts to a deprivation of liberty in some community and care settings, which may in turn reduce the number of cases requiring formal authorisation. Providers should, however, be cautious about treating this as a straightforward administrative exercise. Where restrictions remain significant, the person is objecting, or the factual picture is complex, careful legal and clinical analysis will still be essential.

The risk now is not over-authorising but failing to identify cases that still require appropriate authorisation.

RWK Goodman

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