Overturning Cheshire West: Practical Ramifications for DoLS Practice

Introduction to the Supreme Court Judgment

On 2nd June 2026, the Supreme Court fundamentally reshaped the legal landscape regarding Deprivation of Liberty Safeguards (DoLS). In a unanimous decision, seven Justices overturned the 2014 ruling in Cheshire West.

For over a decade, that case has defined what a deprivation of liberty looks like through the ‘acid test’. A person was deprived of their liberty if:

• They lacked the capacity to consent to accommodation arrangements made to provide care or treatment; and
• Those arrangements meant that the person either was or would be under continuous supervision, continuous control and not free to leave.

For practitioners, that test brought clarity, but at a significant operational cost as it dramatically widened the number of people who fell under Article 5(1)(e) of the European Convention on Human Rights. This created hundreds of thousands of applications for Standard DoLS Authorisations a year, leading to chronic backlogs, and a system under sustained strain.

The new judgment does not remove the safeguards. Nor does it signal a retreat from human rights protections. Instead, it recalibrates the legal test, restoring a more nuanced, context-sensitive approach more closely aligned with cases which have been heard in the European Court of Human Rights. This new shift brings both opportunity and risk.

The judgment, as fascinating as it is, is rather long and complex. It provides a detailed examination of the relevant law as you would expect. The Supreme Court has also produced a summary of the judgment.

The purpose of this article, though, is not to discuss the legal nuances of the decision. It is intended instead to provide as much practical clarity as possible to those working in this area.

The key message is that this is not a moment for panic, but nor is it a moment for complacency. The task now is to work out how to apply the law as it now stands carefully, defensibly, and with professional confidence in the real world.

Background: What was the position under Cheshire West?

For someone to be deprived of their liberty, The European Court (in Storck v Germany (2005) 43 EHRR 6) identified that three elements must be present:

• An objective element: confinement in a restricted space for a non-negligible period of time.
• A subjective element: absence of valid consent.
• Imputability to the State: The confinement must be known to the state, placing them under an obligation to ensure that the confinement does not take place without appropriate legal safeguards.

Historically, distinguishing between a mere restriction of liberty and a full-blown deprivation has been complex.

The Cheshire West ruling, in 2014, attempted to simplify this through the ‘acid test’, by deliberately excluding context and stipulating that where, how or why the confinement was taking place was immaterial. All that mattered was whether the person confined was subject to constant supervision and constant control and not free to leave.

In practical terms, this led to a vast expansion of both DoLS and applications to the Court of Protection for authorisations for deprivations of liberty in the community.

Individuals living in supportive, domestic or family environments, often content and settled, were still legally classified as being deprived of their liberty and therefore in need of a legal framework to monitor that deprivation and ensure it was the least restrictive possible.

The result was a system overwhelmed by volume, with resources diverted from those in genuinely coercive or high-risk situations.

The case brought before the Supreme Court by the Attorney General for Northern Ireland (AGNI) asked a fundamental question: was the decision in Cheshire West correct, or had it moved so far away from the cases decided by the European Court that it should not be relied upon?

The Ruling: A departure from Cheshire West

The Supreme Court concluded that Cheshire West had moved too far away from the cases decided by the European Court and therefore expressly overturned the acid test.

• In its place, the Court has introduced a multifactorial assessment based around both:
• Whether a deprivation of liberty is taking place

The DoLS capacity requirement (in Paragraph 15, Schedule A1, Mental Capacity Act (2005)) that the individual being assessed lacks the capacity to consent to arrangements made for their accommodation for the purposes of their care or treatment.

Does a Deprivation of Liberty Still Exist?

Yes, it is just that the Acid Test is no longer the tool which should be used in assessing whether it does. The new test is that practitioners must consider the individual’s ‘concrete situation’ (first identified in Engel v The Netherlands (1976) and then expanded on in Guzzardi v Italy (1980)).

To do this, the practitioner must consider:

• The nature of the restrictions
• The length of time they’ve been in place
• The effect they are having on the individual
• The manner in which they were implemented

Central to this is what the Supreme Court are calling ‘the prison cell paradigm’. The clearest example of a deprivation of liberty is confinement in a prison. The further someone’s care arrangement moves away from that paradigm- particularly in domestic, community or family settings- the less likely it is to engage Article 5.

This requires a nuanced assessment in which the reason for the confinement, and the type of confinement take centre stage. It also means that, without further guidance, it is now incredibly difficult to work out where the dividing line between a deprivation of liberty and a mere restriction of it now falls.

What is consent?

Therein lies the rub. The effect of the AGNI ruling is that although a person may lack capacity to consent to arrangements made for their accommodation for the purposes of care and/or treatment, they may still be able provide valid consent for Article 5 purposes.

Where an individual has a basic understanding of their situation and expresses acceptance or contentment, the subjective element laid out in Storck v Germany may not be satisfied. Therefore, a deprivation of liberty may not exist.

This is a fundamental shift in approach towards the capacity assessment as it is no longer a matter of lack of capacity equals lack of valid consent. A more nuanced and individualised approach is required. There must also now be clear, recorded, evidence that someone who lacks the capacity to make this decision has, nevertheless, consented to it.

The Court also introduced an important safeguard to this assessment. Where there is ‘serious doubt’ as to whether the person is consenting, no inference that they have consented should be drawn. Any indication of objection, distress, fluctuating wishes or compliance driven by fear means that consent cannot be inferred.

As yet, there is no guidance on the distinction between genuine acceptance and mere acquiescence. Doubtless, this will become clearer in time and with official guidance, but it is a matter which needs to be observed very carefully.

The risk here is that a care home manager’s belief that a resident is agreeing to the arrangements made for them is not on all fours with the views of relatives, or other professionals, and could therefore lead to a safeguarding referral.

How does this impact practitioners?

The judgment took immediate effect. There is no transition period. Practice must adapt now.

Managing Authorities

Automatic reliance on the old acid test must stop. Applications can no longer be made purely based on supervision and lack of freedom to leave. Instead, providers must evidence the individual’s experience, wishes, and level of acceptance within care plans.

Supervisory Bodies

This decision presents both relief and responsibility. Backlogs can be rationalised and reduced, but only where it is safe to do so. A clear prioritisation strategy is essential, focusing on cases involving objection, distress, high levels of restraint or institutional control.

To this end, Supervisory Bodies who still use ADASS’ DoLS Priority Tool, or something similar, should still be assessing those people scored as red or amber, and will need to carefully analyse the greens to ensure that the scoring is correct. If it is, these are the people who are now likely to fall outside of the DoLS structure.

Best Interest Assessors (BIAs) and Mental Health Assessors conducting mental capacity assessments

These roles becomes more complex. The shift from a binary test to a balancing exercise requires stronger professional judgment. BIAs must test assertions of ‘consent’, distinguish genuine engagement from passive compliance, and ensure that the absence of objection is not misconstrued.

For Best Interest Assessors considering whether there is a deprivation of liberty, the reason for the confinement and the application of prison cell paradigm now become key considerations.

Social Workers carrying out capacity assessments

When considering if the DoLS process should be invoked, the legal test under the MCA does not change. However, practice must now separate the question of capacity from the question of consent. Greater emphasis must be placed on eliciting wishes, feelings and the individual’s lived experience.

Nursing home managers

An understanding of the law as it now stands is crucial. In many ways they stand at the crossroads. The responsibility for identifying whether there is a deprivation of liberty and a lack of capacity without agreement lies with them. They must ensure that the records kept by the home and the care plans for any affected individual are thorough.

Those working in community settings

The implications are significant. Supported living, shared lives and family homes will no longer be automatically treated in the same way as institutional environments. However, practitioners must not drift into over-correction. Domestic settings can still be highly restrictive, and safeguards remain critical where coercion is present.

DoLS signatories

Decision-making must now clearly articulate the reasoning behind whether Article 5 is engaged. This includes explicit consideration of consent, evidence of ‘serious doubt’, and the cumulative impact of restrictions.

As mentioned above, a particularly useful support in navigating this transition is the ADASS DoLS Priority Tool. While designed under the old framework, its focus on risk remains relevant. Individuals in the ‘red’ category, those objecting, distressed or subject to high levels of restraint, will almost always still require full assessment. ‘Amber’ cases demand careful analysis but the vast majority will also require full assessment. ‘Green’ cases, where individuals are settled and engaged, may now fall outside Article 5, provided they are properly scored and genuine consent can be evidenced.

Importantly, the tool should be used as a guide, not a shortcut. The new legal test requires reasoning, not categorisation.

Busting the misconceptions that emerged following the judgment

1. “DoLS is effectively over.” It is not. The legal framework remains in place. What has changed is the scope of who falls within it.
2. “Silence or lack of resistance equals consent.” The Court was explicit that this is not the case. Passive compliance is not sufficient. Consent must be evidenced through positive engagement or demonstrable contentment.
3. “Capacity assessments are no longer relevant.” This is incorrect. The MCA remains unchanged. The distinction introduced by the Court is between domestic capacity and Article 5 consent, not a removal of capacity assessment requirements.
4. “Providers now have greater freedom to impose restrictions.” In reality, legal risk has increased. Misjudging consent exposes providers and public bodies to claims of unlawful detention and human rights breaches.
5. “Professional roles, particularly BIAs, will diminish." The opposite is true. As assessments become more nuanced, the need for experienced, confident practitioners increases.

What does this mean?

This judgment represents a significant shift, but not a destabilising one if approached correctly.

It replaces a blunt, over-inclusive test with a more precise, human and context-driven approach. It also restores the importance of individual experience, autonomy and proportionality, while maintaining essential safeguards.

For practitioners, the move away from a clear binary test introduces complexity. But it also reinstates professional judgment to its proper place. The task is no longer to apply a checklist, but to undertake a defensible, evidence-based analysis.

There is reassurance in this. The purpose of DoLS has not changed. It remains to protect individuals from coercive and arbitrary detention. The law now better distinguishes between those who need that protection and those who do not.

Handled well, this is not a retreat from safeguards but an opportunity to deliver a more proportionate, person-centered and legally robust system.

What's next for me?

Bond Solon will continue to keep you updated about all developments in this space, and any forthcoming guidance. Our training offering will implement this new approach and how it impacts practitioners.

Over the coming weeks we will be releasing webinars, insight and training about the impact of this judgment.