The Deprivation of Liberty Safeguards are part of the Mental Capacity Act (2005).
Some people are unable to make their own decisions about their care and/or treatment because they lack the mental capacity to do so. They need more care and protection than others to ensure they do not suffer harm.
Sometimes we have to restrict people's freedom for their own safety.
It is only when the person is unable to decide, that a decision can be made for them in their best interests.
Importantly, an individual's freedom should not be taken away if they can be cared for in a less restrictive way. There are different levels of restriction ranging for example, from a locked door to physical restraint.
At some point, the degree and intensity of these restrictions become what is legally known as a deprivation of liberty. The safeguards provide a legal framework and protection, where deprivation of liberty appears to be unavoidable in a person’s best interests.
The Deprivation of Liberty Safeguards can only be used if the person will be deprived of their liberty in a care home or hospital (other than under the Mental Health Act 1983). In other settings, the Court of Protection can authorise a deprivation of liberty.
UK Supreme Court 2026 judgment on what constitutes a deprivation of liberty - GOV.UK
The Supreme Court Judgement 2026 has overturned the Acid Test in Cheshire West and this is no longer considered ‘good law’ so it can no longer be followed. The Acid Test has been replaced by a multifactorial test (para 183). This:
- Focus on the concrete situation,
- Take into account ‘the whole range of factors’ in the particular case including:
- Type of accommodation,
- Duration of situation,
- Effect on the person concerned,
- Manner of implementation of measures in question.
Confinement must be established as an objective fact and subjectively there must be an absence of valid consent.
- Coercion is a ‘necessary element’.
- ‘Normality’ of circumstances is a relevant factor.
- Absence of objection makes it ‘difficult to conclude’ that there is a DoL (Deprivation of Liberty).
Valid consent is not the same as Mental Capacity. Mental Capacity continues to form one of the assessments for DoLS however, there is now a separate test which relates to valid consent.
This means that you could have a situation when somebody lacks capacity around where to live for the purposes of receiving care, but can be considered to be giving valid consent to the deprivation of liberty.
To be giving valid consent the person is required to have a sufficient awareness of the circumstances in which they are maintained in confinement, as to be able to register whether they are happy or unhappy with those circumstances, and to enter protest against their treatment if they are unhappy with them (para 135).
This is the ‘dividing line’ - If the person has a basic level of awareness and consciousness of their living arrangement, that is sufficient to enable them to know and communicate whether they are happy or unhappy with them.
They may be treated as able to give or withhold valid consent to confinement by an expression of their wishes and feelings (para 201).
‘Mere compliance or acquiescence…is not enough’ (para 191).
Administration of medication is likely to be highly relevant because it suppresses the ability and freedom to express wishes and feelings (para 188).
Where there is doubt about their attitude, no inference should be drawn.
The following six months will be interesting as the related case law emerges, and we will ensure that any significant changes or interpretations are shared and implemented in a timely manner.
While we are awaiting the full guidance from the Department of Health and Social Care, we ask providers to continue to submit DoLS applications.
During this period the DoLS Team will oversee all applications applying the new Supreme Court Judgment.
The new supreme Court Judgement will also apply to DoL in the community where the multifactorial test outlined above will also need to be applied.
You can contact our team via email at Dols@RBWM.gov.uk or by phone on 01628 682919.
