Source: Department for Health and Social Care published on this website June 29 2026 by Jill Powell
The Department of Health and Social Care (DHSC) has published this update as a result of the Supreme Court judgment on 2 June 2026. These changes to the definition of deprivation of liberty apply with immediate effect and extend across the UK.
This update is for:
- health and social care staff
- anyone who cares for an individual who lacks capacity to consent to their care and residence where there is or may be a deprivation of liberty
- staff with responsibility for organisational policies, procedures and internal or external facing documents relating to deprivation of liberty safeguards
Between 20 and 22 October 2025, the UK Supreme Court heard a case brought by the Attorney General for Northern Ireland concerning the definition of a deprivation of liberty.
The Supreme Court handed down its judgment on 2 June 2026 and concluded that:
- the Cheshire West 2014 judgment was incorrect
- instead of relying on the single ‘acid test’, an assessment of whether someone is deprived of their liberty must now consider multiple factors - that is, it is multifactorial
- the starting point in assessing whether someone is deprived of liberty is to look at the specific situation of the individual and take into account the type, duration, effects and manner of implementation of restrictions on the person - crucially, no single factor is determinative
- the Cheshire West 2014 judgment wrongly assumed that if someone lacks legal capacity under the MCA 2005, they cannot give valid consent to the arrangements. The 2026 judgment clarifies that a person’s expression of their wishes and feelings carries significant weight. A person can give valid consent if they are conscious of their environment, have a basic level of understanding and are capable of expressing a view that they accept and/or are happy with the situation. However, if there is serious doubt, no conclusion of valid consent can be drawn
- the effect of the restrictions on the person may differ based on whether or not the person is content with their arrangements - Cheshire West 2014 was wrong to conclude that a person’s lack of objection is never legally relevant to the question of objective confinement
These changes to the definition of a deprivation of liberty apply with immediate effect and extend across the UK.
