Supreme Court redefines deprivation of liberty
In a judgment handed down today ([2026] UKSC 16), the Supreme Court has rejected the definition of deprivation of liberty (DoL) as set out in 2014 by the Cheshire West case ([2014] UKSC 19).
A 7-judge panel unanimously agreed that:
- The definition of a DoL has been too wide and P’s ability to consent has been viewed too narrowly.
- There is not a simple acid test for deprivation of liberty – it is instead necessary to consider a range of factors including whether the purpose of restrictions is for an individual’s safekeeping or their punishment. Maintaining a person within a care environment is unlikely to amount to a DoL.
- Even if a person does not have capacity to consent to their living arrangements under the MCA 2005, if they have a basic level of awareness and consciousness about their living arrangements, they may be able to be treated as having validly consented to those arrangements by an expression of their wishes and feelings.
This is a significant shift in the law and will have a wide-ranging impact across all aspect of health and social care. Immediate consideration should be given to organisational updates and practice/policy revisions.
Upcoming webinar
We will be hosting a free webinar on Friday 5 June 2026 to explain the judgment, its practical impact, and the steps organisations should now take to review policies and practice.
Contact us
If you have any questions or concerns about what this judgement means for you or your service, or for any questions regarding the webinar, please contact us below.