Supreme Court redefines deprivation of liberty: what it means for you

The Supreme Court has issued a landmark decision in A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 ([2026] UKSC 16) (“AGNI”), fundamentally reshaping how deprivation of liberty (DoL) is identified under Article 5 of the European Convention on Human Rights.

While the long-established “acid test” from Cheshire West has dominated practice for over a decade, the Court has now confirmed a significant shift in approach. For health and social care organisations, this judgment will have immediate and wide-ranging operational implications.

This article covers:

• The Supreme Court’s key findings
• Practical implications for care bodies
• Guidance published to date
• What happens next?
• How Hempsons can help

The Supreme Court’s key findings

A multifactorial approach replaces the “acid test”

The Supreme Court confirmed that the “acid test” from Cheshire West—continuous supervision and control together with not being free to leave—can no longer be treated as a standalone objective test for deprivation of liberty.

Instead, decision-makers must undertake a more holistic, multifactorial assessment that looks at the individual’s situation in context. This means considering the “concrete situation” and the realities of the person’s circumstances, rather than relying on a single rigid test.

In practice, this will involve looking carefully, in each individual case, at:

• Type, duration, and manner of implementation of any restrictions
• The effect of the restrictions on the individual, including the presence or absence of objection
• The possibilities available to the individual to leave the restricted area
• The degree of supervision and control of the individual’s movements
• The extent of isolation and availability of social contacts
• The “relative normality” of the placement (e.g. whether their circumstances are normal for them)
• The purpose of the restrictions
• The concept of imprisonment in a prison cell as a “useful comparator”

A new understanding of valid consent under Article 5

The judgment also significantly reshapes the role of consent in deprivation of liberty assessments.

The Supreme Court drew a clear distinction between consent under Article 5 and decision-making capacity under the Mental Capacity Act 2005. Importantly, the threshold for valid consent in a DoL context is lower. An individual does not need capacity to make decisions in respect of care and residence to give valid consent to their confinement.

Instead, the Court indicated that an individual may be able to give valid consent to their arrangements/confinement if they have a basic awareness of their environment and are able to form and express a view (one way or another) about their situation. An individual does not need to explicitly agree to their arrangements to give valid consent. It may instead be inferred from a “tacit positive indication”, such as behaviour demonstrating contentment or acceptance.

The Court did caveat this by saying that where there is “serious doubt” about whether the individual is genuinely consenting, valid consent should not be inferred.

Why the Court moved away from Cheshire West

In departing from its previous decision, the Supreme Court was clear that the “acid test” created a bright-line test which is too crude in its application and leads to an over-extensive interpretation of deprivation of liberty. The Supreme Court also found that the decision in Cheshire West brought with it considerable practical difficulties, and unjustified cost and expense.

Who may no longer be considered deprived of their liberty?

The most significant practical consequence of the judgment is that many individuals who would previously have been considered to be deprived of their liberty, requiring authorisation and oversight through the DoLS framework or the Court of Protection, may no longer be considered to be deprived of their liberty.

The judgment suggests that this may include hospital in-patients receiving routine care, those who are in a minimally conscious state, individuals who are so profoundly disabled that they cannot conceptualise leaving, and those who are unable to express a view about their arrangements and do not have “bodily, physical liberty” to exercise. It may also apply in situations where the care provided aligns with ordinary expectations of daily life, taking into account the relative normality of the placement.

Practical implications for care bodies

NHS Trusts

For NHS Trusts, the immediate impact is likely to be a reduction in situations that amount to a deprivation of liberty requiring authorisation, particularly in cases involving routine treatment. Trusts will wish to amend their policies and processes to account for the revised test as above.

NHS Trusts will need to keep in mind that valid consent to confinement and consent to medical treatment are entirely different concepts. Where a patient lacks capacity to make decisions in respect of medical treatment, the process set out within the MCA 2005 in terms of best interests decision making must still be followed.

In medical treatment cases, even where a deprivation of liberty is not identified, court involvement may still be required where a person lacks capacity to make decisions about treatment themselves if there is a lack of agreement between clinicians/those with an interest in the person’s welfare or a decision is finely balanced, per the Court’s guidance on medical treatment applications (which has not changed).

NHS Integrated Care Boards (ICBs)

ICBs are likely to see a decrease in the number of deprivation of liberty authorisations and associated challenges. However, this is likely to be accompanied by an increased emphasis on oversight, monitoring and ensuring compliance with broader ECHR rights (Arts 2, 3 and 8 for example).

The move towards a more individualised, multifactorial assessment means that a more nuanced approach will be required in reviewing existing cases and determining whether the circumstances still amount to a deprivation of liberty requiring authorisation.

Social care providers

For social care providers, the judgment will require a careful recalibration of how potential deprivation of liberty is identified and recorded in practice.

Existing authorisations will likely need to be reviewed, and providers should take a proactive approach in working with local authorities to ensure that cases are reassessed where appropriate. It will also be important to maintain clear records of which arrangements have been reviewed and the rationale for any decisions made.

Importantly, the underlying care arrangements themselves do not change simply because they may no longer amount to a deprivation of liberty. Providers must continue to deliver care in line with agreed plans and regulatory expectations.

Guidance published to date

At the time of writing, the following guidance has been published with, it is expected, more to come.

The CQC has issued a brief statement in respect of the judgment which confirms that CQC will adopt a “proportionate approach” within assessments whilst determining the practical impact of the judgment, but that care providers will still be expected to:

• demonstrate that they are considering, on a case-by-case basis, whether an authorisation to deprive someone of their liberty may be required
• provide person-centred care, using effective ways to gather the views of each person using the service about their care
• meet the requirements of the Mental Capacity Act 2005, including acting in a person’s best interests, irrespective of whether they are deprived of their liberty.

The Department for Health and Social Care has published guidance which sets out summary points for assessing deprivation of liberty and objections with further guidance and case studies promised.

What happens next?

The decision takes immediate effect, and organisations should begin reviewing their policies and procedures without delay. There will inevitably be a period of uncertainty as further cases come before the Court of Protection, helping to define and clarify the new approach in practice.

We expect additional guidance for practitioners to emerge over time, alongside a shift towards best interests decision-making in cases that might previously have been addressed through DoLS authorisation.

How Hempsons can help

This is a significant and complex development, and organisations will need to carefully navigate the transition to this new legal framework.

Hempsons can support with reviewing policies and procedures, delivering targeted training, and advising on individual cases, including those that fall into more complex or borderline categories.

• You can access our Practical Decision Guide for DoLS decisions to support day-to-day assessment and application of the new approach
• You can also read our dedicated FAQs for health and social care bodies, which addresses common questions arising from the AGNI decision.

Watch our webinar

We recently hosted a webinar with Neil Allen of 39 Essex Chambers, exploring the Supreme Court’s landmark judgment and its practical implications for health and social care organisations. You can watch the recording below.

Contact us

If you would like to discuss how the supreme court decision affects your organisation, please get in touch with our team.