Major Change to Deprivation of Liberty – What Providers Need to Know

We are sharing an important overview of the recent UK Supreme Court judgment on deprivation of liberty, helping providers understand what has changed and what action is needed now.

The ruling, handed down on the 2nd of June 2026 in the case known as “AGNI” (A Reference by the Attorney General for Northern Ireland), overturns the long-standing Cheshire West approach and represents the most significant change to deprivation of liberty practice in more than a decade.

There is no implementation period or delay – the law has changed with immediate effect.

What has changed?

Since 2014, the Cheshire West “acid test” has been central to decisions about whether a person is deprived of their liberty. The test concluded that someone is confined if they are under continuous supervision and control and are not free to leave.

The Supreme Court has now ruled that this test was too simplistic. Instead, providers must now consider a wider range of factors, including:

• The person’s wishes and feelings and whether they object
• The effect of care arrangements on the person
• The nature and duration of restrictions
• The context and purpose of the arrangements
• Whether the person is able to give valid consent

Crucially, no single factor is determinative – it is a multifactorial assessment.

Valid consent – what providers need to know

A significant new concept is that of “valid consent”. The judgment says that even where a person lacks capacity under the Mental Capacity Act 2005 (MCA), their views and behaviour can show that they are “happy” with the arrangements. This can count as valid consent for the purposes of Article 5 ECHR and mean that the arrangements do not amount to a deprivation of liberty.

Important: This is not the same as passive acceptance or compliance. Providers must be able to demonstrate that they have taken reasonable steps to understand the person’s perspective and support communication.

The fundamental thing remains getting the MCA right first – assess capacity, make best interests decisions, and choose the least restrictive option.

What this means for existing DoLS authorisations

It is likely that many people currently subject to DoLS authorisations will no longer fall in scope following this judgment. Where this is the case:

• Authorisations do not need to be renewed when they lapse
• In some cases, it may be appropriate to take active steps to have them discharged sooner

However, this should not change the care being provided – the care should rest on good quality MCA decision-making

What providers should do now

Although the full implications will continue to develop, there are several practical steps providers should consider now:

1. Review policies and procedures – Ensure your Mental Capacity Act, consent and deprivation of liberty processes are aligned with the new legal position.
2. Strengthen documentation and evidence – Best interests discussions, capacity assessments and care planning decisions are likely to come under greater scrutiny. Ensure you have a clear record of: The person’s wishes and feelings, how those views were gathered, why restrictions are considered necessary, how decisions have been reviewed and the rationale behind key decisions
3. Prepare your teams – Frontline staff and managers will need support to understand what the judgment means in practice. Training, briefings and ongoing conversations will be important.
4. Stay alert to further guidance – The Department of Health and Social Care will publish interim guidance, and further case law will emerge. Monitor developments closely while beginning your response now – the law has changed with immediate effect.

In short:

• The “acid test” is gone – replaced by a multifactorial assessment
• Wishes and feelings carry significantly more weight
• Valid consent is now a key consideration – even for those who lack capacity
• Existing DoLS authorisations should be reviewed and may not need renewing
• MCA best interests remains the foundation – the care itself need not change

As the sector adapts to this significant change, confidence, consistency and evidence matter more than ever.