Deprivation of Liberty ruling……What now?

DEPRIVATION OF LIBERTY RULING.…..WHAT NOW?

 

On 2 June 2026, the Supreme Court published a judgment changing the definition of Deprivation of Liberty. This ruling takes place with immediate effect and will supersede the ‘acid test’ established in 2014 by the Cheshire West judgement.

The ‘acid test’ stated that a person was deprived of their liberty if they met two simple factors.

1. Is the person subject to continuous supervision and control?
2. Is the person free to leave?

Under the new multifactorial assessment practitioners and providers will need to consider the individuals overall circumstances rather than relying on a singular test.

 

Factors that are now considered include,

• The type of restriction being imposed
• The duration of those restrictions
• The effects of those restrictions on a person
• How those restrictions are implemented
• Any objection from the person on the restrictions
• The purpose of the arrangements – care and protection versus detention restrictions
• The extent to which the arrangements resemble a deprivation of liberty protected against under the European Convention on Human Rights.

 

A key element of the ruling is that greater weight can now be given to a person's wishes, feelings, and apparent agreement to their care arrangements. The Court confirmed that an individual may be able to provide valid consent to those arrangements even if they lack the capacity to make formal decisions about their care and residence, recognising that capacity and consent are distinct concepts.

 

What does this mean for care providers?......

The changes highlight the importance of care providers needing to actively engage with service users, ensuring the documenting of their views, and that care plans reflect preferences wherever possible.

 

Care records will need to clearly demonstrate:

• The restrictions that are in place and why they are necessary.
• The impact of those restrictions on the individual.
• The person's wishes, feelings, and level of agreement with the arrangements.
• How the least restrictive option has been considered.
• Any ongoing reviews of the arrangements and their effectiveness.

 

Robust documentation will be essential to demonstrate that decisions have been made lawfully and, in the individual’s, best interests.

Care providers will need to review policies, procedures, assessment tools, and staff training materials to ensure they reflect the new legal framework. Organisations should also consider how existing deprivation of liberty cases and authorisations may be affected and ensure that staff understand the practical implications of the new approach

While some care arrangements that would previously have been considered a deprivation of liberty under the acid test may no longer meet the revised definition, care providers' safeguarding duties remain the same. Any restrictions imposed must continue to be necessary, proportionate, and in the person's best interests. Where arrangements are found to amount to a deprivation of liberty, the appropriate legal safeguards and authorisation processes must still be followed.

 

Summary

The new ruling places greater emphasis on the individual's unique circumstances, rights, and personal preferences. For care providers, this means moving away from a rigid, tick-box approach and adopting a more comprehensive assessment of whether care arrangements amount to a deprivation of liberty. To ensure compliance with the updated legal framework, providers will need to focus on robust record-keeping, effective staff training, and truly person-centred care planning.