Supreme Court Judgment on Deprivation of Liberty: Initial Reflections and Emerging Questions
On 2 June 2026, the Supreme Court handed down its judgment in AG (Northern Ireland), a landmark decision which overruled the Cheshire West "acid test" that has shaped deprivation of liberty practice for more than a decade.
The full implications of the judgment will take time to emerge. Local authorities, ICBs, providers, advocates, legal professionals and the courts will now need to consider how the new approach should be applied in practice.
Whilst the judgment provides answers to some long-standing legal questions, it also raises a number of important operational questions which are likely to be the focus of discussion over the coming weeks and months.
Dedicated Resource Hub Coming Soon
Given the significance of this judgment and the many questions that remain unanswered, Uphold Advocacy is currently developing a dedicated resource hub on its website focused on the implications of the Supreme Court's decision.
The hub will bring together:
- summaries of key developments;
- emerging legal and professional commentary;
- practical considerations for local authorities, ICBs and providers;
- updates on guidance and implementation;
- and reflections on the role of independent advocacy within the evolving safeguards framework.
As further information becomes available, the hub will be regularly updated to provide a central source of information and resources.
What Has Changed?
The Supreme Court has moved away from the Cheshire West approach, which focused heavily on whether a person was under continuous supervision and control and not free to leave.
Instead, the Court has returned to a more holistic assessment of a person's circumstances, including their wishes, feelings, understanding of their situation, the nature of any restrictions, and whether valid consent is present.
One of the most significant aspects of the judgment is the Court's conclusion that a person may lack mental capacity to make decisions about their care and residence, but still be capable of expressing wishes and feelings that amount to valid consent for the purposes of Article 5.
What Has Not Changed?
Despite the significance of the judgment, deprivation of liberty has not disappeared.
There will continue to be situations where individuals are deprived of their liberty and require legal safeguards.
The rights of individuals who lack capacity remain central.
The need to understand a person's wishes, feelings, experiences and objections remains fundamental.
The Court has not removed the need for safeguards. Rather, it has changed the legal framework through which those safeguards are considered.
Key Questions Emerging From The Judgment
Having reviewed the judgment and listened to early commentary from legal and professional experts, a number of practical questions appear to be emerging.
What level of understanding is sufficient?
The judgment places importance on a person's understanding of their situation and their ability to express wishes and feelings about their arrangements.
However, many practitioners will be familiar with situations where a person appears content but has only a limited understanding of where they are living or the arrangements in place.
How this will be assessed in practice remains unclear.
How will valid consent be established?
If valid consent becomes a more significant factor in determining whether Article 5 is engaged, questions arise about how consent should be:
- identified;
- evidenced;
- reviewed;
- and reassessed over time.
What happens when circumstances change?
A person who appears content today may express dissatisfaction or objection in the future.
How changes in wishes, feelings or objections are identified and monitored may become increasingly important.
What happens to existing authorisations?
Many existing DoLS authorisations and Court of Protection authorisations were granted under the Cheshire West framework.
How those authorisations will be reviewed and considered under the new legal landscape remains to be seen.
How are new cases identified?
Under Cheshire West, the acid test provided a relatively clear trigger for considering whether safeguards were required.
Without that framework, important questions arise about how potential deprivations of liberty will be identified in the first place, particularly where a person has never previously been subject to an authorisation process.
Who identifies wishes, feelings and objection?
If a person's wishes, feelings, understanding and objections become increasingly important, questions arise about:
- who explores these issues;
- how they are assessed;
- how independent the process is;
- and how often it should be reviewed.
These questions are likely to become increasingly significant as practice develops.
Who identifies people who now meet the new legal test?
The judgment raises important questions about how people who may require safeguards under the new framework are identified.
If a person has never previously been subject to a DoLS assessment, who is responsible for determining whether their circumstances amount to a deprivation of liberty?
Similarly, if a person is considered capable of providing valid consent today, what mechanism exists for identifying changes in their wishes, feelings, understanding or objections in the future?
How will the objective element be assessed in practice?
The Supreme Court has moved away from the Cheshire West acid test and returned to a more holistic assessment of a person's circumstances.
This raises practical questions about how professionals will assess the objective circumstances of a person's care arrangements, what evidence will be required, and how consistency of decision-making can be achieved across different settings and organisations.
The Importance of Independent Advocacy
One theme that appears likely to become more important is the role of independent advocacy.
The judgment places considerable emphasis on understanding a person's wishes, feelings and experiences.
Independent advocacy can play an important role in ensuring that an individual's voice is heard, their views are explored, and their rights remain central to decision-making processes.
As the implications of the judgment become clearer, the importance of understanding the lived experience of individuals subject to restrictive care arrangements should not be underestimated.
Questions around valid consent, understanding, objection and ongoing review all point towards the continuing importance of ensuring that individuals have access to independent support and representation when required.
Looking Ahead
The judgment marks a significant moment in the development of deprivation of liberty law.
However, many of the most important questions are now practical rather than purely legal.
Over the coming weeks and months, we will continue to monitor:
- emerging legal commentary;
- guidance from professional bodies;
- local authority responses;
- developments in practice;
- and the implications for individuals, families, providers and professionals.
Our aim is not simply to report developments, but to help explore what they mean in practice for the people whose rights, wishes and feelings remain at the heart of these safeguards.
