Government issues interim guidance on Supreme Court judgment on deprivations of liberty

On 2 June in A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16 the Supreme Court took the unusual step of overruling its 2014 decision in Cheshire West, which it concluded had been wrong in principle.

This prompted a furious reaction from the three charities that intervened in the case, who described the ruling as “the biggest rollback of disability rights in a generation”.

In its update, published yesterday (15 June), the DHSC directed that organisations should begin “aligning their practice” with the new legal position.

Summarising the 2026 judgment, the DHSC said the Supreme Court concluded:

• 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”.

The changes to the definition of a deprivation of liberty applied with immediate effect and extend across the UK.

The DHSC said: “Organisations should begin aligning their practice with the new legal position. We recognise that there are wide-ranging implications of the judgment. Providers and local authorities should use their professional experience and take a proportionate and considered approach in how they respond to the Supreme Court judgment, before further government guidance is published.

“In the long term, these changes are likely to reduce significantly the number of deprivation of liberty authorisations. In the short term, we recognise that a more cautious approach will be needed, with borderline cases referred for review.”

The Department urged local authorities to make plans for how they will prioritise reviews, assessments of cases coming to the end of their authorisation and new referrals.

Local authorities should also “ensure that essential safeguards such as independent advocacy and access to an appointed relevant person’s representative (RPR) continue where applicable”.

The Department emphasised that the Supreme Court ruling would not remove the need to comply with ECHR article 5 where it is engaged.

“Where there is reason to believe that a person is deprived of their liberty, the DoLS process still applies in hospitals and care homes, and the court process still applies in other settings.”

In addition, organisations were told to continue to ensure they meet their duties and deliver safeguards under:

• the Mental Capacity Act 2005
• the Care Act 2014
• continuing healthcare
• common law duties of care

“The Care Act 2014 provides explicit safeguards for adults with care and support needs. Section 5 of the Care Act 2014 states that local authorities must ensure that the services they commission are safe, effective and of high quality.”

The interim guidance notes that the judgment is clear “that the starting point is a multifactorial assessment of the proposed arrangements before considering whether a person could be said to validly consent, through an expression of their wishes and feelings, to those arrangements”.

It goes on to set out what such an assessment should consider.

Looking at the issue of determining objection, the DHSC said: “It should be noted that the issue of whether a person is objecting to the confinement is relevant to the question of objective deprivation of liberty. Where a person is objecting, then it follows that valid consent is unlikely to be present. If there is an absence of objection when the person is capable of objecting, then it is more likely that the person is not being confined.

“Any objection would point towards a deprivation of liberty. Objection could take a number of forms and could include:

• attempts to leave the setting where the arrangements take place, such as a care home, hospital or supported living;
• refusing care or treatment and/or physical rejection of care (for example, pushing staff away when care is being provided);
• physical restraint or one-to-one care to manage behaviour;
• covert medication if objecting to medication;
• sedating medication to manage behaviour if it impacts on an individual’s ability to object.”

The DHSC warned that compliance does not automatically mean someone is consenting.

It said: “A critical question to consider could be ‘how do we know what this individual actually understands and wants?’ rather than ‘are they compliant?’.

“When assessing wishes and feelings, consideration should be given to what the person is communicating both verbally (if they are able) and through their actions and behaviour. For example:

• do they appear happy or unhappy?
• are they trying to leave or are they distressed in any way?
• are they able to express a view?”

Meanwhile, the DHSC noted that where practitioners from care providers or hospital trusts are in doubt about whether someone is objecting to their confinement or, “in instances where people fluctuate between appearing content and appearing to object to their confinement”, a referral should be made to the local authority for consideration of a DoLS authorisation, or the Court of Protection.

Considering the Supreme Court ruling’s impact on existing authorisations, the Government observed it is likely that there will be many people currently subject to DoLS authorisations who no longer fall in scope of DoLS.

It said: “This could be because the restrictions are no longer seen to amount to a deprivation of liberty following a multifactorial assessment and/or because the person is able to give valid consent to them.

“Where the person is no longer deprived of their liberty but has a DoLS authorisation in place, their cases should be reviewed as soon as is practicable. However, leaving the authorisation in place in the meantime does not mean the person is being unlawfully deprived of their liberty.

“Local authorities should document their approach for responding to the change in definition in terms of their caseloads, referrals and current authorisations, and clear decision making should be recorded, particularly where authorisations are left to lapse if they no longer fall in scope of DoLS.”

The Department revealed it will in due course publish additional interim guidance, including practical case studies, to assist with the implications of the ruling.

Last week the Care Quality Commission also issued a statement on the Supreme Court's ruling, saying it would "adopt a proportionate approach in its assessments while it works with partners in the health and care system to determine the practical impact of this revised position".

Lottie Winson