Supreme Court Deprivation of Liberty Resource Centre
Resources, Commentary, FAQ's and Practical Implications
Last Updated: 14 July 2026
Introduction
On 2 June 2026, the Supreme Court handed down its judgment in AG (Northern Ireland) (AGNI), overturning the Cheshire West "acid test" and introducing a significant change to the legal framework for deprivation of liberty.
Whilst the legal principles have now been established, the practical implications continue to evolve.
Across England and Wales, local authorities, Integrated Care Boards (ICBs), care providers, supervisory bodies, advocates, legal professionals and the Court of Protection are now considering how the judgment should be applied in practice.
Alongside this, national guidance has been published and operational approaches are beginning to emerge. These approaches are not always consistent.
This resource centre has been created to provide a central source of:
- legal developments;
- practical commentary;
- operational considerations;
- emerging themes;
- professional resources; and
- updates as practice continues to develop.
Our aim is not simply to explain the law, but to explore what it means in practice.
Please note: This resource centre is intended to support discussion and understanding. It is not legal advice.
Uphold Commentary
14 July 2026 – Current Reflections
Whilst much of the initial discussion understandably focused on the Supreme Court judgment itself, attention is now increasingly turning towards implementation.
The legal framework has changed.
The challenge is how that framework is applied consistently across England and Wales.
From conversations with practitioners, professional groups, webinars and published commentary, it is already apparent that a variety of operational approaches are emerging.
Some organisations appear to be continuing assessments whilst applying the new legal framework.
Some have paused assessments whilst awaiting further guidance.
Some appear to be placing greater emphasis upon objection.
Others are adopting a broader multifactorial approach.
These differences are perhaps inevitable whilst practice develops.
However, they also raise important questions about consistency, referral thresholds and access to safeguards.
In our view, the discussion has now moved beyond the legal test itself.
Increasingly, the practical questions appear to be:
- How are people identified?
- Who explores wishes and feelings?
- How is valid consent evidenced?
- When should referrals be made?
- What level of scrutiny is required before concluding that Article 5 is not engaged?
These operational questions may ultimately prove just as significant as the judgment itself.
We will continue to update this resource centre as developments occur.
Quick Links
What Has Changed?
Cheshire West Overruled
The Supreme Court has overruled the Cheshire West acid test.
The Court has ruled a multi factorial assessment is required in order for it to be determined if a person is now deprived of their liberty.
Factors Which Now must Be Considered:
- wishes and feelings;
- understanding;
- objection;
- distress;
- valid consent;
- relative normality;
- the person's lived experience;
- the objective circumstances of the arrangements.
No single factor is determinative.
Each case must be considered on its own facts.
Valid Consent
The Court recognised that a person may lack capacity under the Mental Capacity Act whilst still possessing sufficient understanding to express wishes and feelings that may amount to valid consent for Article 5 purposes.
What Has Not Changed?
The Mental Capacity Act (2005) remains unchanged.
People continue to have rights under Article 5 of the European Convention on Human Rights.
Some individuals will continue to require deprivation of liberty safeguards.
The Court of Protection continues to authorise community deprivation of liberty where the legal criteria are met.
Independent advocacy remains an important safeguard.
The judgment has not removed safeguards.
It has changed the legal framework through which safeguards are considered.
Emerging Themes
Several themes now appear to be emerging nationally.
Operational Variation
Different organisations appear to be responding in different ways.
Examples include:
- continuing existing assessment processes;
- reviewing current authorisations;
- prioritising cases involving objection;
- awaiting further guidance;
- adopting differing referral thresholds.
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How much variation develops nationally remains to be seen.
Community Deprivation of Liberty
Much discussion has centred on care homes and hospitals.
However, the judgment also has implications for:
- supported living;
- Shared Lives;
- extra care housing;
- people's own homes;
- and other community-based care arrangements.
Questions remain regarding:
- relative normality;
- objection;
- restrictive care packages;
- Court of Protection authorisations;
- and future community applications.
Advocacy and Independent Scrutiny
One of the most significant practical questions arising from the Supreme Court judgment is not simply who will continue to require deprivation of liberty safeguards.
It is who will continue to receive independent scrutiny.
Historically, many people living in care homes have had regular contact with independent professionals through the DoLS process. Best Interests Assessors, Independent Mental Capacity Advocates (IMCAs) and Paid Representatives have provided opportunities for a person's wishes, feelings, views and lived experience to be explored independently of those responsible for providing their care.
If fewer people ultimately require DoLS authorisations, an important question arises.
What replaces that independent scrutiny?
Many people living in long-term care are rarely seen by someone independent of the service providing their care.
Some people fund their own care and have little or no contact with their local authority.
Some experience delayed Care Act reviews.
Some have no family members actively involved in their lives.
Some are unbefriended.
Some have no entitlement to statutory advocacy because there is no qualifying decision requiring an IMCA.
If those individuals no longer receive DoLS assessments or authorisations, they may also lose one of the few opportunities for an independent professional to routinely explore their wishes, feelings and experiences.
This raises a wider question about the future of advocacy.
Should independent advocacy continue to be commissioned primarily in response to statutory triggers, or is there now a stronger case for proactive rights-based advocacy within care homes and other long-term care settings?
Could regular independent visits help to identify changing wishes, feelings, objection or concerns before they develop into safeguarding issues or legal disputes?
Might advocacy services have a greater role in supporting care providers to understand the person's perspective, whilst also helping local authorities identify those individuals whose circumstances require further legal scrutiny?
Equally, could managing authorities benefit from independent support in understanding the developing legal framework, enabling them to identify those cases that genuinely require referral whilst avoiding unnecessary applications?
These are not simply questions about advocacy.
They are questions about how the rights of people who lack capacity continue to be recognised, heard and protected within a changing legal landscape.
As the implications of the Supreme Court judgment continue to develop, the future discussion may need to move beyond deprivation of liberty alone.
It may also need to consider whether independent advocacy itself should evolve to ensure that the voices of people living in long-term care continue to be heard, even where a DoLS authorisation is no longer required.
What We're Hearing Across England and Wales
The following themes have been reported by practitioners.
- Variation in referral practice.
- Different interpretations of objection.
- Different approaches to assessment.
- Continuing uncertainty regarding community cases.
- Questions regarding Schedule A1 duties.
- Ongoing Court of Protection applications.
- Greater discussion regarding advocacy and independent scrutiny.
We expect these themes to continue evolving over the coming months.
Questions We're Watching
Among the questions currently shaping professional discussion are:
- How should valid consent be evidenced?
- What amounts to objection?
- How should relative normality be applied?
- What does the judgment mean for community deprivation of liberty?
- How should managing authorities identify people requiring referral?
- What role should supervisory bodies play in triaging referrals?
- How will existing Court of Protection authorisations be reviewed?
- What role will advocacy play?
- How will consistency be achieved nationally?
Practical Considerations
For Managing Authorities
- Recording wishes and feelings.
- Recording objection.
- Recognising restrictive arrangements.
- Understanding referral thresholds.
- Identifying when concerns should be escalated.
For Supervisory Bodies
- Referral triage.
- Assessment pathways.
- Consistency of decision-making.
- Managing operational variation.
For Providers
- Recording changes in presentation.
- Recording distress.
- Supporting understanding.
- Recognising possible objection.
- Escalating concerns appropriately.
For Advocates
- Exploring wishes and feelings.
- Identifying objection.
- Recording lived experience.
- Supporting participation.
- Understanding the developing legal framework.
Frequently Asked Questions
Has deprivation of liberty been abolished?
No.
The Supreme Court judgment did not abolish deprivation of liberty or remove the need for legal safeguards.
What it did was change the legal framework used to determine whether Article 5 of the European Convention on Human Rights is engaged.
The Cheshire West acid test no longer applies. Instead, courts and practitioners must undertake a broader evaluation of the person's individual circumstances, including factors such as wishes, feelings, understanding, objection, valid consent and the objective nature of the arrangements.
Many individuals will continue to require Deprivation of Liberty Safeguards. The question is now how those safeguards are identified, rather than whether safeguards continue to exist.
Does objection automatically mean a deprivation of liberty?
The Supreme Court did not establish an "objection test".
Objection is now one of a number of important factors that may be relevant when determining whether Article 5 is engaged.
The significance of any objection will depend upon its nature, the wider circumstances and how it interacts with other aspects of the person's care arrangements.
For example, objection may relate to:
the placement itself;
particular restrictions;
aspects of care;
medication;
contact with others;
or leaving the setting.
Each situation requires careful consideration.
Does lack of objection mean there is no deprivation of liberty?
No.
Equally, the absence of objection does not automatically mean that Article 5 is not engaged.
Some individuals may not object because they are content with their arrangements.
Others may lack sufficient understanding to express meaningful views.
Some may communicate through behaviour rather than words.
Others may never have been asked about their wishes or experiences.
The Supreme Court requires consideration of the person's overall circumstances, not simply whether they verbally object.
Has the Mental Capacity Act changed?
No.
The Supreme Court judgment did not amend or change the Mental Capacity Act 2005.
The statutory principles set out in section 1 of the Act remain exactly the same.
The legal tests for assessing mental capacity under sections 2 and 3 remain unchanged.
The best interests framework under section 4 remains unchanged.
The principles governing restraint under section 6 also remain unchanged.
The role and powers of Independent Mental Capacity Advocates (IMCAs), Best Interests Assessors (until replaced by Liberty Protection Safeguards) and the Court of Protection have not been altered by the judgment.
What has changed is the legal framework used to determine whether a person is deprived of their liberty for the purposes of Article 5 of the European Convention on Human Rights.
The Supreme Court overruled the Cheshire West "acid test" and introduced a broader approach to determining whether the objective and subjective elements of a deprivation of liberty are satisfied.
One important consequence of this is that, for the specific purpose of the Article 5 analysis, the Court recognised that a person may lack capacity to make decisions about their residence or care under the Mental Capacity Act whilst still possessing sufficient understanding of their circumstances to provide valid consent to the arrangements for Article 5 purposes.
This development relates only to the deprivation of liberty analysis.
It does not create a new test for mental capacity or consent under the Mental Capacity Act generally.
Practitioners should therefore continue to apply the Mental Capacity Act in exactly the same way as before, whilst recognising that the legal approach to determining whether a deprivation of liberty exists has changed.
Is Cheshire West still the law?
No.
The Supreme Court expressly overruled the legal approach established in P v Cheshire West and Chester Council; P and Q v Surrey County Council [2014] UKSC 19, commonly known as the "acid test".
For more than a decade, practitioners determined whether a person was objectively deprived of their liberty by considering whether they were:
under continuous supervision and control; and
not free to leave.
Those factors are no longer the legal test.
Instead, the Supreme Court has confirmed that determining whether a deprivation of liberty exists now requires a broader assessment of the person's individual circumstances. This includes consideration of factors such as the nature of the restrictions, relative normality, the person's wishes and feelings, understanding of their situation, objection and whether there is valid consent for the purposes of Article 5 of the European Convention on Human Rights.
Although Cheshire West is no longer the governing legal authority on deprivation of liberty, many of the practical circumstances considered in Cheshire West cases may still be relevant when assessing a person's overall situation. The difference is that no single factor is now determinative.
Practitioners should therefore avoid replacing the Cheshire West acid test with another single-factor approach. The Supreme Court has made clear that deprivation of liberty must be assessed by considering all the relevant circumstances of the individual case.
Will fewer people require authorisation?
Many commentators anticipate that fewer people may ultimately meet the legal threshold for deprivation of liberty.
However, this should not be confused with fewer people requiring consideration.
The DHSC interim guidance places significant emphasis on exploring wishes, feelings, understanding, objection and valid consent.
These issues often require detailed assessment and engagement before any conclusion can properly be reached.
The practical challenge therefore may not simply be whether fewer authorisations are granted, but how individuals requiring further scrutiny are identified in the first place.
Does the judgment mean DoLS assessments are no longer required?
No.
The Supreme Court judgment does not mean that Deprivation of Liberty Safeguards (DoLS) assessments are no longer required.
What has changed is the legal framework used to determine whether a person is deprived of their liberty for the purposes of Article 5 of the European Convention on Human Rights.
Some people who would previously have met the Cheshire West acid test may no longer require a DoLS authorisation under the new legal approach. Equally, many people will continue to require the safeguards and the assessment process remains the mechanism by which this is determined.
The practical challenge lies in identifying who requires assessment.
Under Schedule A1 to the Mental Capacity Act 2005, where a managing authority requests a standard authorisation, the supervisory body must obtain the required statutory assessments, including a Best Interests Assessment.
The Supreme Court judgment did not amend Schedule A1 or remove those statutory duties.
As practice develops, organisations are considering how referrals should be made under the new legal framework. Some local authorities continue to assess applications in the usual way, whilst others have introduced different operational approaches following the judgment and the publication of interim DHSC guidance.
National practice is therefore continuing to evolve.
The key question is no longer simply whether DoLS assessments are required, but how individuals who may require those assessments are identified and referred. This is one of the most significant operational issues currently facing practitioners following the judgment.
What is meant by valid consent?
One of the most significant aspects of the Supreme Court judgment is its consideration of valid consent for the purposes of Article 5 of the European Convention on Human Rights.
This is an important point of distinction.
The judgment does not change the law on capacity or consent under the Mental Capacity Act 2005 more generally.
The principles governing decision-making under the Mental Capacity Act, including the assessment of capacity and the best interests framework, remain unchanged.
Instead, the Supreme Court recognised that, for the specific purpose of determining whether a deprivation of liberty exists under Article 5, a person may lack capacity to make decisions about their residence or care under the Mental Capacity Act, yet still possess sufficient understanding of their situation to express wishes and feelings that amount to valid consent to the arrangements for Article 5 purposes.
This distinction applies only to the Article 5 deprivation of liberty analysis.
It should not be interpreted as creating a new test for consent under the Mental Capacity Act generally or altering the statutory principles contained within the Act.
Precisely how valid consent should be explored, evidenced and reviewed in practice remains one of the key operational questions arising from the judgment. Further guidance and future Court of Protection decisions are likely to provide greater clarity.
Does the judgment affect supported living and community cases?uestion
Yes.
The Supreme Court judgment applies across Article 5 and is therefore relevant to community deprivation of liberty as well as DoLS.
This includes supported living, Shared Lives, extra care housing, people's own homes and other community-based care arrangements.
Questions remain about how factors such as relative normality, objection and valid consent will be applied in community settings.
As further Court of Protection decisions become available, they are likely to provide greater clarity regarding the practical application of the judgment outside hospitals and care homes.
Publication Timeline and Resource Library
Key Resources and Publications
This timeline is maintained by Uphold Advocacy and will be updated whenever significant developments occur, including Court of Protection decisions, Government guidance, Parliamentary activity, ADASS publications and other nationally significant resources.
2 June 2026
Supreme Court Judgement (AGNI)
A Reference by the Attorney General for Northern Ireland [2026] UKSC 16
Supreme Court Press Summary
2 June 2026
Court of Protection – Note for Re X Judges
Following the Supreme Court judgment, Carolyn Hilder issued an immediate note for judges dealing with Re X community deprivation of liberty applications.
The note confirms, amongst other things, that:
- Cheshire West is no longer good law.
- The new multifactorial approach must be applied immediately.
- The assessment requires consideration of:
- the type of accommodation;
- duration;
- effect;
- manner of implementation;
- relative normality;
- valid consent; and
- objection.
- Mental capacity to decide residence is not required for valid consent for the purposes of Article 5.
- Mere compliance or acquiescence is insufficient to establish valid consent.
- Where there is serious doubt regarding a person's wishes or attitude, no inference should be drawn.
This note provided the first practical guidance to Court of Protection judges on applying the Supreme Court judgment to community deprivation of liberty cases.
Parliamentary Activity
Since the Supreme Court judgment on 2 June 2026, Members of both the House of Lords and House of Commons have raised a number of important questions with the Government regarding the practical implications of the judgment.
These questions provide useful insight into the issues of national concern, including guidance, advocacy, independent scrutiny, valid consent and the future operation of the Deprivation of Liberty Safeguards.
3 June 2026
HL636 – Protecting the Rights of People with Disabilities
Question
What steps will the Government take to protect the rights of people with disabilities following the Supreme Court judgment overruling the Cheshire West framework for Deprivation of Liberty Safeguards?
Government Response – 16 June 2026
The Government confirmed that:
- it remains committed to safeguarding the rights of people with disabilities;
- DoLS continue to operate under the new legal framework;
- wider protections continue through the Mental Capacity Act 2005, Care Act 2014, Care Quality Commission and common law duties of care.
Resource
https://questions-statements.parliament.uk/written-questions/detail/2026-06-03/HL636
3 June 2026
HL637 – Interim Guidance and Future Legislation
Question
What plans does the Government have to issue interim guidance following the Supreme Court judgment and are there plans to introduce legislation restoring independent oversight?
Government Response – 16 June 2026
The Government confirmed that:
- interim guidance would be published as quickly as possible;
- organisations should begin implementing the judgment immediately;
- there are currently no plans to introduce further legislation.
Resource
https://questions-statements.parliament.uk/written-questions/detail/2026-06-03/HL637
3 June 2026
HL638 – Independent Reviews and Advocacy
Question
What estimate has the Government made of the number of people who may lose access to independent reviews and advocacy following the Supreme Court judgment, and what assessment has been made of the potential risk of abuse or neglect?
Government Response – 19 June 2026
The Government stated that:
- DoLS continue to include rights to independent reviews and advocacy where appropriate;
- people outside DoLS may continue to access advocacy and other safeguards under the Mental Capacity Act and Care Act where applicable;
- CQC continues to provide regulatory oversight;
- further guidance is being developed with stakeholder organisations.
Resource
https://questions-statements.parliament.uk/written-questions/detail/2026-06-03/HL638
3 June 2026
Weightmans – From Cheshire West to Northern Ireland: A New Dawn for Deprivation of Liberty
Weightmans published one of the earliest detailed legal analyses of the Supreme Court judgment, examining both the decision itself and its wider implications for health and social care.
The article considers:
- why the Supreme Court overruled Cheshire West;
- the new multifactorial approach to deprivation of liberty;
- the concept of valid consent for Article 5 purposes;
- the significance of objection and apparent compliance;
- relative normality and the objective element;
- the likely impact on DoLS practice;
- implications for community deprivation of liberty and Re X applications;
- workforce, training and organisational considerations; and
- the potential future of the Liberty Protection Safeguards (LPS).
The authors conclude that, whilst the judgment is likely to reduce the number of people requiring deprivation of liberty authorisations, it also introduces greater complexity and is likely to result in further litigation as the courts develop the new legal framework.
39 Essex Chambers Webinar
5 June 2026
39 Essex Chambers – Mental Capacity Report (June 2026)
8 June 2026
Care Quality Commission (CQC)
CQC statement on the Supreme Court's judgment on deprivation of liberty
This statement explains the immediate effect of the judgment for providers and confirms that the Mental Capacity Act 2005 remains unchanged.
Parliamentary Activity
8 June 2026
HL757 – Independent Scrutiny for People Outside DoLS
Question
Following the Supreme Court judgment, what steps are being taken to ensure that people who are no longer subject to DoLS continue to receive independent scrutiny of their care plans and the proportionality of restrictive practices?
Government Response – 17 June 2026
The Government responded that:
- DoLS are only one of a number of legal safeguards;
- individuals outside DoLS may continue to receive independent advocacy and scrutiny through other statutory mechanisms where appropriate;
- the Department is continuing to develop further guidance following publication of the DHSC interim guidance.
Resource
https://questions-statements.parliament.uk/written-questions/detail/2026-06-08/HL757
9 June 2026
HL784 – Valid Consent
Question
Who is responsible for determining whether a person who lacks capacity is validly consenting to their care arrangements following the Supreme Court judgment, and what safeguards exist if that decision rests with the managing authority rather than an independent professional?
Government Response – 1 July 2026
The Government referred to the DHSC interim guidance and reiterated that:
- the Supreme Court judgment must now be applied;
- further implementation guidance is being developed with stakeholder organisations;
- wider safeguards continue to operate through the Mental Capacity Act, Care Act and Care Quality Commission.
This question raises one of the most significant practical issues following the judgment—who should determine whether valid consent exists and what level of independent scrutiny should accompany that decision.
Resource
https://members.parliament.uk/member/2484/writtenquestions
9 June 2026
House of Commons Written Question 8218 – Consultation, Advocacy and Safeguards
Question
Whether the Government intends to consult publicly on the implications of the Supreme Court judgment; what assessment has been made of the impact on independent scrutiny, advocacy and legal remedies; and what steps are being taken to ensure that people continue to receive appropriate protections.
Government Response – 16 June 2026
The Government confirmed that:
- there are currently no plans to undertake a public consultation;
- no assessment has yet been made of the impact on access to independent scrutiny, advocacy or legal remedies;
- further guidance is being developed with stakeholder organisations;
- wider safeguarding protections continue under the Mental Capacity Act 2005, the Care Act 2014 and other statutory frameworks.
Resource
https://questions-statements.parliament.uk/written-questions/detail/2026-06-09/8218/
12 June 2026
Weightmans Webinar and Analysis
15 June 2026
Department of Health and Social Care (DHSC)
Changes to the definition of deprivation of liberty
Interim guidance issued pending a revised Mental Capacity Act Code of Practice. The guidance explains the Government's interpretation of the Supreme Court judgment and the immediate practical implications for providers, local authorities and practitioners.
18 June 2026
ADASS Operational Update
Update note from ADASS following the Supreme Court decision on deprivation of liberty on 2 June 2026
This guidance confirms that the Supreme Court judgment took immediate effect, that the Cheshire West acid test should no longer be applied, and provides operational advice to councils whilst national implementation continues. It also announces work with the National DoLS Leads Network to develop a priority/review tool.
ADASS Position Statement
ADASS responds to Supreme Court ruling on Deprivation of Liberty Safeguards
ADASS's initial response to the Supreme Court judgment outlining the significance of the decision for adult social care.
June 2026 onwards
Mental Capacity Law and Policy
A dedicated resource bringing together commentary, analysis, podcasts and practical discussion relating to the Supreme Court judgment.
39 Essex Chambers – Mental Capacity Resource Centre
Future Resources
As further information becomes available, this Resource Centre will include links to:
- Published Court of Protection judgments applying AG (Northern Ireland)(AGNI)
- Additional DHSC guidance
- ADASS implementation resources
- CQC updates
- NHS England publications
- Professional webinars
- Academic commentary
- Practice tools and templates
About This Resource Centre
This page will be updated regularly as further information becomes available.
Our aim is to provide practical, balanced information to support professionals, providers, advocates, commissioners, individuals and families navigating the implications of this significant judgment.
As the legal and operational implications of the judgment become clearer, this resource centre will continue to develop and expand.