Change to Deprivation of Liberty Law

A Major Change to Deprivation of Liberty Law: What the Supreme Court’s 2026 Decision Means for You

The Supreme Court has this week delivered a landmark judgment in A Reference by the Attorney General for Northern Ireland [2026] UKSC 16, fundamentally changing how the law understands deprivation of liberty.

This decision has immediate effect, and it is likely to significantly change how care arrangements are assessed across hospitals, care homes, and the community.

In this blog, we explain what has changed and what it means in practice for people who may be subject to Deprivation of Liberty Safeguards (DoLS) or community-based deprivation of liberty orders.

What was the Deprivation of Liberty Law before?

Until now, the law has been guided by the well-known “acid test” from the 2014 Supreme Court case Cheshire West.

A person was considered deprived of their liberty if they were:

• Under continuous supervision and control, and
• Not free to leave

This test was intentionally simple, but it led to a very wide range of people being considered deprived of their liberty — including many people living in supportive care arrangements.

What has the Supreme Court changed?

The Supreme Court has now overturned the Cheshire West test.  Instead, the Court says there is no single “acid test”. Instead, decision-makers must look at the whole situation. This is known as a “multi-factorial approach.”

What does that mean in practice?

Professionals must now consider a range of factors, including:

• The ‘relative normality’ of the placement,
• The type and level of restrictions,
• How long they last,
• Their impact on the person,
• The purpose of the care, and
• The person’s own wishes and feelings.

In short, the question becomes:

Is this person really being confined in a way that amounts to a loss of their physical liberty? Rather than a mere restriction on the liberty of movement.

A key shift: consent now matters

One of the most important developments is that a person who lacks mental capacity may still be able to consent to their care arrangements in a meaningful way. The Supreme Court made clear that:

• Even if someone cannot make formal legal decisions about their care,
• They may still be able to show they are content, settled, or accepting of where they live.

If so, this may mean that they are not deprived of their liberty at all. This is a significant change from previous law, where consent was often disregarded if a person lacked capacity.

Does the setting matter?

Yes — much more than before. The Court emphasised that living:

• In your own home, or
• In a family or community setting

is very different from being in:

• A hospital, or
• A locked institution

In community settings, restrictions may need to be much more severe before they amount to a deprivation of liberty.

What about people in a very severe condition?

The Court also clarified that if someone is unable to physically exercise their freedom (for example, due to profound disability or unconsciousness), they may not be considered deprived of liberty at all, because they are not being prevented from doing something they could otherwise do.

What does this mean for DoLS and community authorisations?

This judgment affects all deprivation of liberty cases, including:

• Standard DoLS authorisations (in hospitals and care homes), and
• Community deprivation of liberty cases authorised by the Court of Protection

The Supreme Court has confirmed that:

• The definition of deprivation of liberty has now changed, and
• The old Cheshire West approach must no longer be followed.

Importantly: There is no transition period — the new law applies immediately.

What does the Change to Deprivation of Liberty Law mean in practice?

We are likely to see:

• Fewer situations classified as a deprivation of liberty, particularly in community settings
• A greater focus on the person’s own experience and wishes
• More case-by-case decision making, rather than applying a simple test
• Potential reviews of existing authorisations and Court of Protection orders

There may also be a period of uncertainty while the courts and professionals work through how the new approach applies in different situations.

How can our Court of Protection Team help?

This is one of the most significant changes to mental capacity law in over a decade.

At David Gray Solicitors, our Court of Protection Health & Welfare team  are on hand to provide clear, practical guidance during this period of change, call 0191 232 9547.