Supreme Court Deprivation of Liberty Judgment: FAQs for Health and Social Care Bodies

The Supreme Court’s decision in AGNI marks a fundamental shift in how deprivation of liberty is assessed in practice, replacing the long-established Cheshire West “acid test” with a more nuanced, multi-factorial approach.

As organisations begin to apply this new framework, a number of practical questions are emerging around DoLS assessments, consent, and the identification of deprivation of liberty in health and social care settings.

Below, we answer some of the most common FAQs to support providers, commissioners and practitioners in navigating this change.

For a detailed overview of the judgment and its implications, you can read our full deprivation of liberty article.

Frequently Asked Questions

1. What is the key takeaway from the Supreme Court’s decision?

The judgment overturns the decision in Cheshire West and changes the legal test for what counts as a deprivation of liberty. In practice, this means fewer individuals are likely to meet the definition, particularly where they are content with their care arrangements.

2. From when is the decision valid or should be taken to be in effect?

The decision is valid immediately and should be taken to have come into effect on its publication date, 2 June 2026.

3. Does this mean fewer DoLS applications will be required?

Yes. In many cases, DoLS authorisations may no longer be required. However, this will always depend on a case-by-case, multi-factorial assessment.

4. What happens to individuals currently subject to DoLS Authorisations?

It is not the case that all DoLS authorisations will immediately stop or should be immediately terminated. Consideration will need to be given to whether someone is deprived of their liberty under the new test and supervisory bodies should be invited to carry out a Part 8 review if considered appropriate. It’s worth remembering that the DoLS authorised the restrictions in place, rather than created the restrictions. As such, care plans will remain dependent on the needs of the individual and should be reviewed by providers regularly, including to see if a deprivation of liberty is present.

5. How do we now determine whether someone is deprived of their liberty?

The previous “acid test” has been replaced by a multi-factorial approach. This requires a holistic assessment of the situation, including the nature, duration and effect of restrictions, the person’s wishes and feelings, the purpose of the arrangements, and whether the individual is consenting to their arrangements.

6. Does “contentment” now equate to consent?

Not in the traditional legal sense. However, a person who has a basic level of awareness of their circumstances and appears happy with them may be treated as giving “valid consent” to their confinement, even if they lack decision-making capacity in relation to their residence and care under the Mental Capacity Act. This is a significant shift and will require careful assessment and clear documentation. Capacity to make decisions about care, residence and treatment should still be assessed under the Mental Capacity Act 2005.

7. What if a person lacks capacity but appears happy with their placement?

Where an individual has a level of awareness about their care and residence arrangements and appears content, most likely they will no longer meet the threshold for a deprivation of liberty. That said, caution is essential, particularly where the person cannot meaningfully communicate their wishes or where there is any uncertainty about their position.

8. What if someone objects or wants to leave?

Where an individual is actively objecting, expressing a wish to leave, or having their wishes overridden, they are much more likely to meet the threshold for a deprivation of liberty and to continue to require formal safeguards.

9. How does this affect restraint or restrictive practices?

Restraint or restrictive practices remain dependent on the needs of the individual and still should only be as is necessary and proportionate to the risk posed. The use of restraint remains highly relevant to whether someone is deprived of their liberty. Regular or significant restraint – whether physical, chemical or environmental – may still amount to a deprivation of liberty, particularly where it overrides the person’s wishes. However, each case must be assessed holistically, and the intention of the restraint is also important.

10. What about patients in hospitals?

The impact will vary depending on the circumstances although it is likely that fewer DoL authorisations will be required. Routine treatment line with the patient’s wishes and feelings is less likely to require authorisation, whereas patients with higher levels of restrictions and/or who object to their admission or treatment are more likely to require safeguards. More complex scenarios, such as prolonged sedation on ICU to facilitate treatment (which wouldn’t usually require sedation), are likely to still meet the threshold for a deprivation of liberty. Patients will still require capacity assessments for decisions about treatment, and court applications will still be required in circumstances caught by the guidance on Serious Medical Treatment cases.

11. How does this apply in care homes or supported living?

It is likely that fewer DoL authorisations will be required. For individuals who are settled, content and only minimally restricted, it is likely that they will no longer be considered to be deprived of their liberty requiring formal authorisation.

12. What about community-based care?

It is now less likely that individuals in community settings will be considered to be deprived of their liberty. This is more likely to arise only where there is clear objection and/or where restrictions are particularly severe, such as restraint or seclusion.

13. How does the decision apply to under-16s?

The multi-factorial approach of assessing whether someone is deprived of their liberty is equally applicable to under-16s.

14. Does this change the role of the Mental Capacity Act?

No. The core principles remain unchanged. Capacity assessments are still required, best interests decision-making still applies, and any restrictions must continue to be only as is necessary and proportionate.

15. How does this interact with the Mental Health Act?

It does not change the provisions of the Mental Health Act. It may result in reduced reliance on DoLS following discharge. However, caution is still required, particularly where there is any element of coercion or potential detention.

16. What safeguards remain in place if DoLS is no longer required?

Even where DoLS does not apply, a range of safeguards remain in place. These include the Mental Capacity Act best interests framework, Care Act duties and safeguarding processes, access to advocacy such as IMCAs, and broader human rights protections under Articles 2, 3 and 8.

17. What happens to current Court of Protection cases?

Existing authorisations remain in place and must be reviewed to see if a deprivation of liberty is still present. Court of Protection proceedings do not automatically conclude and consideration should be given (in conjunction with your legal team as necessary) as to whether the proceedings can/should be brought to an end or whether other issues remains to be decided (e.g. a best interests dispute).

18. What is the impact on Liberty Protection Safeguards (LPS)?

There is currently no confirmed position. However, the reduction in deprivation of liberty cases may reduce the need for LPS, and further government guidance is expected.

19. What should organisations do now?

Organisations should avoid making reactive and unplanned changes, but begin reviewing internal learning and processes for identifying deprivations of liberty under the new test. It is important to ensure staff understand the new multi-factorial approach and to consider how best to evidence and record individuals’ wishes, feelings and levels of objection. Further guidance is expected from the government, case law and updated Codes of Practice, and organisations should look out for that.

20. Will this case be appealed?

This case cannot be appealed to the European Court of Human Rights as it was on an academic point of law and does not have an individual “victim” that would be able to take the point. Organisations should proceed on the basis that this change is here to stay.

How Hempsons can help

For a more comprehensive analysis of the judgment and its practical impact on DoLS assessments, return to our main deprivation of liberty article.

You can also access our practical decision guide for deprivation of liberty assessments under the new framework.

Contact us

If you would like advice on applying this decision within your organisation, including reviewing existing DoLS cases or updating policies and processes, please get in touch with our specialist team.