Deprivation of Liberty: What Does the Latest Government Guidance Mean for Social Care?
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In June 2026, the Supreme Court delivered a landmark judgment which significantly changed how deprivation of liberty is identified and assessed.
The judgment overturned the approach established by the Cheshire West case in 2014, which had become familiar to many working in adult social care.
Since then, care providers, local authorities and health professionals have been considering what the changes mean in practice.
The Department of Health and Social Care (DHSC) has published advice on responding to the judgment, with its guidance page most recently updated on 22 September 2026.
So, what are the key messages for adult social care?
Moving Away from the Acid Test
Under the previous Cheshire West approach, a person was generally considered deprived of their liberty if they were subject to continuous supervision and control and were not free to leave, regardless of whether they objected.
The Supreme Court has now rejected this single 'acid test' in favour of a more individualised, multifactorial assessment.
This means considering several aspects of a person's circumstances, including:
· The type and intensity of restrictions being imposed.
· How long restrictions are in place.
· The impact of those restrictions on the individual.
· How restrictions are implemented.
· The purpose of the arrangements and the setting in which care is provided.
· The person's wishes, feelings and any indication of objection.
No single factor determines whether someone is deprived of their liberty.
Wishes, Feelings and Consent
One of the most significant changes concerns the importance attached to a person's wishes and feelings.
The Supreme Court recognised that someone who lacks mental capacity to make decisions about their care or residence may nevertheless be able to express valid consent for the purposes of determining whether they are deprived of their liberty.
This does not mean that simply appearing content or being compliant automatically amounts to consent.
Staff and professionals must consider what the person understands about their circumstances and what they communicate, both verbally and through their behaviour.
For example, does the person appear comfortable with their arrangements? Do they express a wish to leave? Do they resist particular restrictions or become distressed?
Their previous wishes and feelings may also be relevant.
Importantly, the absence of objection should not automatically be interpreted as agreement, particularly where someone has difficulty communicating or may feel unable to express their views.
What Happens to Existing DoLS Authorisations?
The government acknowledges that some people currently subject to Deprivation of Liberty Safeguards (DoLS) authorisations may no longer meet the revised definition.
However, this does not mean that all existing authorisations should immediately be cancelled.
DHSC advises that cases should be reviewed as soon as practicable where the arrangements may no longer constitute a deprivation of liberty.
Local authorities are expected to develop proportionate approaches to managing reviews, existing authorisations and new referrals.
Care providers should work with their local supervisory bodies and follow agreed procedures rather than making assumptions about whether an authorisation is still required.
What About Care Outside Care Homes?
The judgment also has implications for people receiving care and support in supported living, their own homes and other community settings.
In these circumstances, a deprivation of liberty generally requires authorisation through the courts rather than the standard DoLS process.
The same individualised approach must now be considered when determining whether arrangements amount to a deprivation of liberty.
For example, restrictions on someone living in their own home must be considered in the context of their circumstances, the purpose and impact of those restrictions, and their wishes and feelings.
This reinforces the importance of considering the individual rather than relying on a standard checklist.
What Should Care Providers Be Doing?
The government recognises that organisations will need time to adjust to the new legal position.
Its advice emphasises a proportionate and considered approach while further guidance is developed.
In practice, care providers should:
· Ensure managers and relevant staff are aware of the judgment and its implications.
· Review policies, procedures and training materials that still rely solely on the previous acid test.
· Give greater consideration to people's wishes, feelings and experiences of restrictions.
· Maintain clear records explaining why restrictions are necessary and how they affect the individual.
· Seek advice from the local authority or relevant professionals where there is uncertainty about whether a deprivation of liberty exists.
· Continue using appropriate DoLS or court processes where authorisation may be required.
Importantly, the Mental Capacity Act 2005 remains central to decision-making, including the principles of supporting people to make decisions, acting in their best interests where appropriate, and using the least restrictive options.
Further Guidance Is Expected
DHSC has acknowledged the wide-ranging implications of the judgment and confirmed that additional interim guidance is being developed.
This is expected to include practical case studies to help professionals apply the revised definition in different care settings.
In the meantime, the judgment should not be interpreted as permission to impose restrictions without proper consideration or safeguards.
The fundamental principle remains unchanged: people's rights, wishes and wellbeing must remain at the centre of decisions about their care and support.
Sources
Department of Health and Social Care:
UK Supreme Court: