On 2 June 2026, the UK Supreme Court, in A Reference by the Attorney General for Northern Ireland [2026] UKSC 16, moved away from the long-standing Cheshire West approach and held that the familiar “acid test” was wrong as the sole way of identifying a deprivation of liberty (DoL).

The Court also held that a person who lacks capacity to make decisions about residence and care may, in some circumstances, still give subjective consent to those arrangements through their wishes, feelings, words or conduct.

For care homes and nursing homes, this is not a technical tweak. It could materially change how providers assess restrictions, consent and lawful care. For more than a decade, providers have worked within a framework shaped by Cheshire West, where continuous supervision and control plus not being free to leave (the binary acid test) usually pointed towards a deprivation of liberty requiring formal authorisation in the form of a Deprivation of Liberty Safeguard (DoLS) . The new ruling says the position is more nuanced, more fact-specific and, in some cases, narrower than many providers have assumed.

Of note the ruling does apply to the community setting, but it is fair to say that because DoL in the community is authorised through the Court of Protection or the High Court’s inherent jurisdiction, the court will be making the decision and not the Registered Manager of the care home.

Why this matters so much in adult social care

DoLS remains in force in England and Wales for adults aged 18 and over in hospitals and care homes, while Liberty Protection Safeguards still have not been implemented. The Department of Health and Social Care has published a formal update confirming that the Supreme Court’s new definition applies with immediate effect across the UK, and that organisations should begin aligning practice, policies, procedures and public-facing materials with the new legal position.

A new Deprivation of Liberty Code of Practice was also published on 2 June 2026, and the Government has said it intends to consult on Liberty Protection Safeguards in 2026.

So, providers are dealing with transition, not resolution. DoLS has not gone away. The Mental Capacity Act 2005 still governs the framework. Duties around:
• Capacity
• Best interests
• Least restrictive care
• Lawful authorisation
• Review and challenge
still apply but the test for when care arrangements amount to a DoL has changed immediately, and providers should not assume old practice will safely carry them forward.

What has changed and what has not

The first shift is clear: the old “acid test” must no longer be treated as the decisive shortcut. The Supreme Court said it was too crude and confirmed that the correct approach is more multi-factorial, looking at the:
• Person’s specific situation
and the
• Type
• Duration
• Effects
• Manner of implementation of the restrictions.

For providers, that means less formula and more local judgement.

The second shift is likely to be the more difficult one in practice. The Court recognised that a person who lacks capacity to decide on residence and care may still express a form of valid subjective consent to the arrangements. That will generate debate. It does not mean providers can rely on passive compliance, silence or convenience – which is perhaps the easy option. It does mean the person’s wishes, feelings, behaviour and response to the arrangements may now carry even greater weight when assessing whether Article 5 is engaged. This may mean gauging a better understanding of past wishes and considering behaviours and other nuanced signs of content or discontent with current living arrangements.

What has not changed matters just as much. Providers still need appropriate:
• Mental capacity assessments
• Lawful best interests decisions
• Regular review of restrictions
• A real commitment to least restrictive care

Where there is doubt, objection, significant restriction or a messy factual picture, safeguards still matter; if anything, this judgement raises the bar for decision-making and recording.

What care home providers should do now

Providers should not start dismantling existing authorisations, governance processes or safeguarding arrangements because of the judgment. But they should urgently review:
• MCA and DoLS training
• Internal guidance
• Escalation routes
• Recording templates

Teams need to understand that DoL is no longer the box-ticking exercise it was in some homes. Good reasoning and good evidence now matter even more.
Secondly, revisit care planning and records. Providers should clearly distinguish between a lack of capacity to make the formal decision and the person’s expressed wishes and feelings about the arrangements in place. If a provider considers that a person is content with, and subjectively consenting to, those arrangements, that should never be assumed; rather it should be evidenced properly (that is a complete and coherent record should be made as to why the provider feels this to be the case), reviewed regularly and considered alongside the level of supervision, control, restriction and any sign of objection or distress.

Thirdly, keep a low threshold for escalation. If a resident is resisting care, trying to leave, expressing unhappiness, showing distress or is subject to particularly restrictive measures, providers should continue to seek advice and, where necessary, pursue authorisation rather than testing the limits of the new ruling.

Until fuller guidance arrives from government, regulators and the courts, care home providers and registered managers in particular need to be doubly cautious in their approach to DoLS.

What happens next

ADASS has now issued a further update following the DHSC guidance, confirming that the AGNI judgment became the test for DoL immediately, that there is no period of grace; that is the Cheshire West acid test should no longer be followed. At the same time, ADASS has advised councils to keep responding to DoLS referrals while a coordinated national approach to existing authorisations, waiting cases and prioritisation is developed. This means providers should expect local variation in the short term and should therefore monitor what is going on local to them.

The DHSC update also makes clear that organisations should review deprivation of liberty materials, train staff on the new definition and consider how to prioritise cases during the adjustment period.

Immediate provider checklist
• Brief staff that the Cheshire West acid test is no longer the correct standalone test.
• Review DoLS, MCA and restraint policies, public-facing information, training materials and internal escalation documents.
• Check whether assessment and care planning templates capture the person’s wishes, feelings, conduct, signs of objection and the purpose, effect and duration of restrictions.
• Do not cancel or ignore existing DoLS processes.
• Keep escalating cases involving objection, distress, attempts to leave, high levels of restriction, family dispute or uncertainty about consent for DoLS.
• Record the reasoning carefully, especially where a provider considers that a DOLS may not be necessary under the new multi-factorial approach.

Summary

At Bettal, we would encourage care home providers to take the time to look at the new regulations and to consider how they apply to the people in their care. Care home providers and registered managers should ensure that they review and revise any policies and procedures they have I n place to reflect the new changes.
If you have run a care home and you are looking for ongoing support with policies, procedures, browse our website or get in touch:

Email: info@bettal.co.uk
Telephone: 01697741411

Peter Ellis MA MSc BSc(Hons) RN
Consultant
Bettal Quality Consultancy