New Deprivation of Liberty Guidance: What the Supreme Court Ruling Means for Legal and Social Care Professionals

The Department of Health and Social Care (DHSC) updated its guidance on deprivation of liberty on 22 September 2026, following a landmark Supreme Court judgment earlier this year. The changes have significant implications for social care providers, families and professionals working with people who may lack the mental capacity to make decisions about their care and living arrangements. The updated guidance provides further resources to help health and social care professionals understand and implement the new legal position. But what has changed, and what does it mean in practice?

 

A landmark change to the definition of deprivation of liberty

On 2 June 2026, the Supreme Court handed down a significant judgment which overturned the approach established in the 2014 Cheshire West case.

For more than a decade, the Cheshire West judgment's 'acid test' had been used to determine whether someone was being deprived of their liberty. Under this approach, a person was considered deprived of their liberty if they were subject to continuous supervision and control and were not free to leave, regardless of whether they appeared happy with their arrangements.

This meant that many people living in care homes, hospitals and supported living environments, who lacked the mental capacity to consent to their arrangements, were considered to be deprived of their liberty and required legal authorisation.

The Supreme Court has now established a different approach, moving away from this fixed test towards a more individualised, multifactorial assessment.

What has changed?

The new legal approach requires professionals to consider the person's actual circumstances rather than relying on a standard set of criteria.

Factors to consider include:

• The type of restrictions: What limitations are placed on the person's freedom? For example, locked doors, physical restraint, constant supervision or restrictions on movement.

• Duration: How long do these restrictions last?

• Effects: How do the arrangements affect the individual's everyday life?

• Implementation: How are restrictions applied in practice?

• The person's wishes and feelings: Are they content with their arrangements, or do they show signs of objection?

• Context: How do the arrangements compare with ordinary living circumstances, and how far removed are they from a situation of detention?

No single factor determines the outcome. Instead, professionals must consider the overall circumstances and the effect of the arrangements on the individual.

Importantly, the judgment also recognises that someone may be capable of giving valid consent to their care and living arrangements for the purposes of Article 5 of the European Convention on Human Rights, even if they lack mental capacity under the Mental Capacity Act 2005.

This represents a significant shift in how deprivation of liberty is identified.

Acknowledging a person's wishes and feelings

One of the most important aspects of the judgment is the greater significance given to an individual's wishes and feelings.

Previously, under the Cheshire West approach, whether someone appeared content with their arrangements was not relevant to the objective test for deprivation of liberty.

The new approach recognises that a person's expression of acceptance or objection can be highly relevant.

For example, someone who understands their environment, has a basic level of understanding of their arrangements and can express that they are happy with them may be able to give valid consent, even if they lack capacity under the Mental Capacity Act.

However, this does not mean that an absence of objection automatically amounts to consent.

Professionals must consider how someone communicates, including through their behaviour, actions and emotional responses. They should also take account of previously expressed wishes, family observations and any circumstances that might prevent someone from expressing how they really feel.

Fear of consequences, perceived pressure, sedating medication or feeling like a burden can all affect how someone communicates their wishes.

What does this mean for social care providers?

The new definition applies immediately across the UK. The DHSC expects care providers and local authorities to begin aligning their practices with the revised legal position.

For social care organisations, this means:

Reviewing existing authorisations

Providers and local authorities should consider whether existing Deprivation of Liberty Safeguards (DoLS) authorisations remain necessary under the new approach. Some people who were previously considered to be deprived of their liberty may no longer meet the revised definition.

Updating policies and procedures

Organisations should review their internal policies, procedures, staff guidance and public-facing information to ensure they reflect the new legal framework.

Supporting staff training

The DHSC has highlighted the importance of ensuring that professionals understand the changes. Its September guidance update signposts staff to updated Mental Capacity Act and DoLS e-learning resources published by NHS England in July 2026.

Taking a proportionate approach

The DHSC recognises that there will be a period of adjustment. Providers and local authorities should take a considered approach to reviewing cases, with borderline situations referred for further consideration.

Where there is uncertainty about whether arrangements amount to a deprivation of liberty, the appropriate DoLS or Court of Protection processes should continue to be used while the position is clarified.

Does this mean fewer people will need DoLS authorisation?

Potentially, yes. The DHSC anticipates that the revised definition will significantly reduce the number of people requiring deprivation of liberty authorisations in the longer term.

However, this does not mean that the safeguards are being removed.

Where a person's arrangements amount to a deprivation of liberty, Article 5 protections remain essential. The DoLS framework continues to apply in hospitals and care homes, while deprivation of liberty in other settings may require authorisation through the Court of Protection.

The Mental Capacity Act 2005 and Care Act 2014 also continue to provide important protections, including requirements around best interests decision-making, safeguarding and access to appropriate support and advocacy.

The judgment changes how deprivation of liberty is identified, not the wider responsibility to protect people's rights and wellbeing.

What should families and professionals take away from the changes?

For families, the judgment reinforces the importance of being involved in decisions about a person's care and living arrangements. Understanding someone's wishes, preferences, history and daily experiences is essential to ensuring decisions genuinely reflect their interests.

For professionals, it is an opportunity to look more closely at how restrictions affect the individual, rather than relying solely on established processes or assumptions about someone's capacity.

Ultimately, the legal framework should support people's rights, not become a substitute for understanding them as individuals.

The judgment places renewed emphasis on the importance of listening to people, recognising how they communicate and ensuring that decisions about their lives take account of what matters to them.

How Plan with Care can help

Navigating the Mental Capacity Act and deprivation of liberty requirements can be complex, particularly when families and professionals are trying to balance safety, independence and an individual's wishes.

At Plan with Care, we provide specialist Mental Capacity Assessments, including litigation capacity assessments, alongside Health & Welfare Assurance to support families, solicitors and professionals in making informed, legally robust decisions.

Our team can provide independent assessments and guidance to help establish whether someone has capacity to make a specific decision and support those involved in complex health and welfare matters.

If you need support with a Mental Capacity Assessment, Litigation Capacity Assessment or advice about health and welfare decisions, contact Plan with Care to discuss how we can help.