Supreme Court Overhauls Deprivation Of Liberty Test In Landmark Judgment

The Supreme Court has delivered one of the most significant Court of Protection judgments in over a decade, fundamentally reshaping the law on deprivation of liberty under Article 5 (right to liberty and security) of the European Convention of Human Rights.

In A Reference by the Attorney General for Northern Ireland [2026] UKSC 16, the Court unanimously held that the approach established in P v Cheshire West and Chester Council, more commonly known as the “acid test” is no longer the correct test for determining whether a person is deprived of their liberty. The decision also confirms that a person who lacks capacity to make decisions about their residence and care arrangements may nevertheless be capable of providing valid consent, by way of appearing happy in their situation, to arrangements that would otherwise amount to a deprivation of liberty.

Key findings

The Supreme Court reached two headline conclusions:

1. The Cheshire West “acid test” was wrong to treat continuous supervision and control combined with a lack of freedom to leave as determinative of deprivation of liberty.
2. A person lacking capacity for the relevant decisions may still be able to give valid subjective consent to their living and care arrangements, preventing Article 5 from being engaged.

A move away from the “acid test”

Since 2014, the Cheshire West test has significantly expanded the circumstances in which care arrangements were regarded as a deprivation of liberty, including the introduction of a framework known as the Deprivation of Liberty Safeguards (DoLS).

Following the Supreme Court’s judgement, the Court of Protection and practitioners must undertake a broader assessment of all the circumstances. Relevant considerations include the nature, purpose and effects of the restrictions imposed. The Court emphasised that arrangements designed for a person’s care, protection and welfare are less likely to constitute a deprivation of liberty than arrangements imposed to prisoners or individuals detained under the Mental Health Act 1983.

Recognition of subjective consent

The second major development concerns consent. The Court held that a person may be able to provide valid consent to their arrangements even if they lack the mental capacity required to make formal decisions about their residence or care.

Where an individual demonstrates sufficient awareness and acceptance of their circumstances through words or conduct showing contentment with their care arrangements, this could be deemed as them giving valid consent. As a result, some arrangements that would previously have required deprivation of liberty authorisation may fall outside the scope of Article 5 altogether.

Practical implications

The judgment is expected to have profound implications across health and social care settings. It is likely to reduce the number of situations requiring deprivation of liberty authorisations and may significantly alter current safeguarding and authorisation practices.

However, considerable uncertainties remain, some of which we have detailed below. Further guidance will be needed to clarify how the new objective and subjective tests should be applied in practice, particularly in cases involving fluctuating capacity, objection, or complex care arrangements.

Furthermore, as this judgement by the Supreme Court was made following a Reference by the Attorney General for Northern Ireland, and not an individual claimant, it cannot be appealed to the European Court of Human Rights.

Issues that remain unclear

Until we have practical guidance on implementing this judgement, the following matters remain unclear:

1. What happens to current deprivation of liberty cases where a Standard Authorisation or Court Order remains in place but the individual who lacks capacity is happy with the arrangement. Does the Local Authority let the Standard Authorisation or Order lapse, or do they apply to have it removed?

2. There will be a significant reduction in applications by a Local Authority for Standard Authorisations for individuals in care home or hospital settings, or Court Orders authorising a deprivation of liberty in an individual’s home. A Local Authority will also not have to deal with as many Relevant Person’s Representatives (RPRs), Independent Mental Capacity Advocates (IMCAs) and Rule 1.2 Representatives.

It could be considered that this will free up a substantial amount of time for a Local Authority, however, instead they will be busy with Part 8 Reviews, which is an assessment of an individual’s Standard Authorisation. These reviews will be essential to determine whether individuals are giving valid consent to their deprivation. Following this review, and if valid consent is determined, the Local Authority will need to consider removing any Standard Authorisation or Court Orders.

Local Authorities are likely, therefore, likely to be under pressure to consolidate these issues following the judgement and potentially reverse thousands of DoLS authorisations, which is a huge and time-consuming undertaking.

3. Currently, an individual in a care home or hospital setting under a Standard Authorisation, who objects to their deprivation of liberty, can make a section 21A application to the Court of Protection to have the Standard Authorisation removed. This application is usually made via an IMCA, RPR or family member. These applications are currently funded by non-means tested Legal Aid funding due to the involvement of a deprivation of liberty. Any current section 21A applications that are with the Court, where following this judgement by the Supreme Court, the individual should not have been deprived of their liberty in the first place, may no longer be entitled to Legal Aid funding.

4. Due to the nature of the Court of Protection, the individuals in question are highly vulnerable. It will be essential to determine whether that individual is actually happy in their current setting, and not subject to any form of coercion, which would influence them communicating or demonstrating happiness, despite them not being so. It would be very helpful for industry wide guidance to be put in place to assist with this.

5. The implementation of Liberty Protection Safeguards (LPS), which is the proposed, updated legal framework designed to replace DoLS may no longer be required. It was planned for LPSs to encompass all settings, including care homes, hospitals, supported living and an individual’s home. Furthermore, LPSs were to extend these protections to 16- and 17-year-olds, where DoLS only applies to adults aged 18 and over. It is unclear, however, whether this judgement encompasses individuals under the age of 18.

6. In their judgement, at paragraph 164, the Supreme Court appears to suggest that an individual or, potentially, body who has authority to make best interest decisions on behalf of an individual, could give consent on behalf of this individual. It is difficult to see how this can be correct or appropriate given the wide range of individuals or authorities who could give this consent.

7. The concept of valid consent is likely to result in practical issues for the Local Authorities when determining this. The judgement states at paragraph 135 that an individual who is, for example, in a care home setting and unable to leave “may nonetheless be sufficiently aware of the circumstances in which they are maintained in confinement as to be able to register whether they are happy or unhappy with those circumstances”. The reality of this is more complex. How is a Local Authority to test an individual’s happiness?

Looking ahead

The decision marks the end of the Cheshire West era and a substantial recalibration of deprivation of liberty law. Practitioners, local authorities, NHS bodies and care providers will need to review existing policies and authorisation processes in light of the Supreme Court’s new approach.

Given the scale of the change, further case law and guidance can be expected as the courts work through the practical consequences of this landmark judgment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.