All change in the world of DoLS

Article 5 of the Human Rights Act protects the right to liberty and security of person. Where a person’s care arrangements involve restrictions that interfere with that right, the deprivation of liberty must be authorised. The Deprivation of Liberty Safeguards (DoLS) provide the legal framework for considering and authorising those restrictions.

In England and Wales, DoLS are intended to ensure that any deprivation of liberty is lawful, necessary and in the person’s best interests. Under the Mental Capacity Act, restrictions and restraint in care homes and hospitals may be authorised through a standard authorisation granted by the relevant local authority. Where a person is deprived of their liberty outside these settings, for example in their own home, authorisation must instead be sought from the Court of Protection.

The Government has, for some time, proposed replacing DoLS with the Liberty Protection Safeguards, however those changes have not yet been implemented.

Before the recent Supreme Court judgment, the framework for determining whether a person was deprived of their liberty was the “acid test” developed in P v Cheshire West and Chester Council [2011].

The test asked whether a person was under continuous supervision and control and whether they were free to leave. If those elements were present, the objective element of a deprivation of liberty was usually satisfied. Where the person also lacked capacity to consent to their care arrangements, valid consent could not be given for a deprivation. As a result, legal safeguards were required and, in care homes and hospitals, a standard authorisation would be needed before the arrangements could lawfully continue.

A further requirement was that the deprivation had to be imputable to the State (ie was the responsibility of government). For example, a person cared for at home, but under arrangements funded by a local authority, would meet that requirement. Where care was privately funded but arranged or overseen by a Property and Financial Affairs Deputy, the State element could still be present because the deputy is accountable to the Court.

The test meant that many more people came within the DoLS regime. Between 2024 and 2025, 364,900 DoLS applications were received, 58% of which were urgent, a historic high. A significant number of applications were not completed within the required timescales, with local authorities citing resource pressures. Delays meant risk, including the risk of unlawful detention, reduced opportunities to challenge care arrangements and the possibility of excessive restrictions.

Northern Ireland’s Health Minister wanted to amend the guidance in place to allow valid consent to care arrangements despite a lack of capacity. The matter was referred to the Supreme Court to decide whether this was in line with Article 5.

The Supreme Court has now concluded that the acid test should no longer be followed. It held that a lack of capacity to make decisions about care and residence does not, of itself, mean that a person cannot give valid consent. Instead, the assessment must be more nuanced and consider the person’s individual circumstances, including their wishes, feelings and response to the restrictions.

The Supreme Court decided unanimously that the acid test was to be overruled. The judgement can be broken down into two key areas:

This judgement came with immediate effect.

The immediate effect of the judgment will be a reduction in cases requiring formal DoLS authorisation. However, the position is not straightforward. The deviation from the Cheshire West acid test towards a multifactorial assessment introduces a greater degree of uncertainty, especially in borderline or complex cases.

There is a particular risk that apparent cooperation or lack of objection may be treated too readily as consent. Consider a person with significant communication needs, autism, a learning disability, dementia, or other impairments affecting how they express wishes and feelings. The judgment does not permit assumptions to be made from passive compliance alone; however, it has been suggested that those in these settings may be harder to assess. Careful, evidence-based recording of an individual’s wishes, feelings, presentation and any signs of objection will therefore be essential.

The judgment has potential benefits. A narrower and more fact-sensitive approach may allow professionals and local authorities to focus resources on cases where restrictions are genuinely significant or contested. The aim of the Court was to bring the provisions back in line with the ECHR, who never adopted the Cheshire approach.

The Government has confirmed that the Department of Health and Social Care will publish further interim guidance, including practical case studies. Until that guidance is available, practitioners will need to apply the judgment cautiously. Existing authorisations and pending applications may also need to be reviewed, which means that any reduction in administrative burden may not be immediate.

The practical application of the DoLS regime has been significantly changed by the decision of the Supreme Court. The overturning of the Cheshire West case has shifted the legal test from a rigid one, to a multifactorial one. This represents a major change in safeguarding practice, but one brought with a degree of uncertainty for practitioners, carers and most importantly, the person and families of those being deprived of their liberty.