Key Facts
- 2 June 2026 — the Supreme Court overruled its own 2014 Cheshire West decision in A Reference by the Attorney General for Northern Ireland [2026] UKSC 16 (UK Supreme Court, 2026)
- The judgment was unanimous, from a seven-Justice panel, and applies across the UK
- The "acid test" — continuous supervision and control, and not free to leave — is gone, replaced by a multifactorial assessment (Community Care, 2026)
- A person who lacks Mental Capacity Act capacity can now give valid consent to their care arrangements if they have basic awareness and express contentment
- The change took effect immediately, with no grace period — the CQC confirms there is no change to the Mental Capacity Act itself (CQC, 2026)
- It does not change NHS Continuing Healthcare eligibility — DoLS and CHC are separate legal frameworks
If a relative of yours is in a care home or hospital and lacks the capacity to consent to being there, you may have heard the phrase "they're on a DoLS." On 2 June 2026 the legal foundation under that phrase shifted. The Supreme Court overruled the 2014 Cheshire West judgment that has shaped Deprivation of Liberty Safeguards for more than a decade — and the change took effect the same day, with no transition period (UK Supreme Court, 2026).
This article explains, in plain English, what the Court actually decided, what it changes for a relative already in care, and — the question families ask us first — whether it affects their NHS Continuing Healthcare claim. (Short answer on that last point: no.) For the underlying guide to how DoLS works, see our family guide to Deprivation of Liberty Safeguards.
TL;DR: On 2 June 2026 the Supreme Court unanimously overruled Cheshire West ([2026] UKSC 16), scrapping the "acid test" for deprivation of liberty and replacing it with a case-by-case multifactorial assessment. A person who lacks Mental Capacity Act capacity can now give valid consent to their care if they understand and accept it. The change is UK-wide and immediate. It narrows when DoLS applies — but it does not change NHS Continuing Healthcare funding, the National Framework, or the "primary health need" test (Community Care, 2026).
What Did the Supreme Court Actually Decide on 2 June 2026?
A seven-Justice panel unanimously held that the "acid test" set down in P v Cheshire West and Chester Council [2014] UKSC 19 was wrong in principle and should no longer be followed. The lead judgment, delivered by Lord Sales and Lady Simler, found the 2014 majority had gone beyond the European Court of Human Rights and departed from a long-standing case-by-case approach (Mental Capacity Law & Policy, 2026).
The case reached the Court by an unusual route: a reference by the Attorney General for Northern Ireland. The question was narrow but fundamental. Can a person aged 16 or over who lacks capacity to decide about their care still give valid consent to their living arrangements? If they can, those arrangements are not a deprivation of liberty under Article 5 of the European Convention on Human Rights. Because the answer turns on a point of Convention law, the judgment applies across the whole of the UK.
The headline shifts are two. First, there is no single "acid test" any more. Second, lacking capacity under the Mental Capacity Act 2005 no longer automatically means a person cannot consent to their own care arrangements. Both are significant departures from the law families and professionals have worked with since 2014.
What Was the "Acid Test" — and What Replaces It?
Since 2014, a person was deprived of their liberty if they were under "continuous supervision and control, and not free to leave," regardless of whether they objected or whether the arrangements served their welfare. That low threshold drove DoLS applications in England from 13,700 in 2013–14 to 364,900 in 2024–25 (DHSC, 2025). The Supreme Court has now replaced that bright line with a multifactorial assessment of the individual's specific situation — the type, duration, effects and manner of the restrictions in question.
The new approach has two elements, and both must be present for a deprivation of liberty to exist. The objective element is confinement in a particular place for a non-negligible time. The subjective element is the absence of valid consent to that confinement. It is the subjective element that has changed most: "valid consent" is now treated as an autonomous human-rights concept — separate from, and not defeated by, a lack of capacity under domestic mental capacity law.
At a glance, here is how the old test compares with the new one:
| What the test asks | Before — the "acid test" (2014–2026) | From 2 June 2026 — multifactorial |
|---|---|---|
| The test | Two fixed yes/no questions | A case-by-case judgment of the whole situation |
| Key factors | Continuous supervision and control; not free to leave | Type, duration, effects and manner of the restrictions; the person's specific situation |
| The person's consent | Irrelevant once they lacked Mental Capacity Act capacity | Valid consent is possible even without Mental Capacity Act capacity |
| Likely result | More care arrangements classed as a deprivation of liberty | Fewer arrangements classed as a deprivation of liberty |
The practical direction of travel is that the definition narrows. Fewer care arrangements will be classed as a deprivation of liberty, which means fewer DoLS authorisations. Welfare bodies have flagged a shared concern: that some vulnerable people — particularly older people in care homes and hospitals — could lose the independent oversight a DoLS authorisation brought, even though their care has not changed. The Association of Directors of Adult Social Services (ADASS), the CQC, the British Geriatrics Society and the Challenging Behaviour Foundation have all said so.
Does This Change Your Relative's CHC Funding?
No. The ruling is about liberty, not funding — and this is the point families most need to hear. Deprivation of liberty and NHS Continuing Healthcare are two separate legal frameworks that happen to affect the same families. One is about Article 5 human rights; the other is about who pays for care. Changing one does not change the other.
The National Framework for NHS Continuing Healthcare is untouched. The primary health need legal test is untouched. The 12 domains of the Decision Support Tool, the Checklist, the assessment process — none of it is affected by this judgment. If your relative is eligible for CHC today, they are equally eligible tomorrow, whatever happens to their DoLS status.
There is, however, an indirect knock-on worth understanding. Our DoLS family guide makes the point that a DoLS authorisation is often useful evidence for a CHC claim, because it documents continuous supervision and intensive need. In the cases families bring to us, that paperwork is frequently the first document to spell out just how much support a relative actually needs day to day. If fewer people now hold a DoLS authorisation, fewer families will have that particular document to point to. But the underlying needs have not gone anywhere — and it is the needs, not the label, that matter for CHC.
Why Your Relative's Wishes and Feelings Now Carry Legal Weight
The most far-reaching part of the judgment is its treatment of consent. The Court held that someone who lacks capacity under the Mental Capacity Act can still give valid consent — provided they have a basic awareness of their living arrangements and can express contentment with them. Where they do, there is no deprivation of liberty to authorise. A person's wishes and feelings are no longer a footnote — under the subjective limb of the new test, they can be decisive.
That is a meaningful shift for families, because you are usually the person who knows whether your mother is settled and content in her care home or distressed and trying to leave. Whichever it is, it now matters legally. Two practical habits follow from this:
- Record what your relative expresses. Whether they appear content with their care, or whether they object to it, note it with dates and specifics. Care plans, daily logs and your own contemporaneous notes all count.
- Make sure their objections are heard. If your relative does not accept their arrangements, that absence of valid consent points towards a deprivation of liberty that still needs lawful authorisation and independent scrutiny.
This is also where the liberty question and the funding question quietly meet. The same observations that show whether a person consents to their care — the behaviour, the cognition, the distress, the level of supervision required — are exactly the evidence a CHC assessment weighs. They map straight onto the domains of the Decision Support Tool. They are also the well-managed needs that families are so often warned not to let assessors under-score. Documenting needs and wishes carefully serves both processes. It is not legal advice to keep good records; it is simply good practice.
What Should Families Do Now?
Because the ruling took immediate effect with no grace period, the CQC has told care providers to familiarise themselves with the new framework, adjust their practice, and take their own legal advice while official guidance is developed (CQC, 2026). For families, the sensible steps are calmer and more concrete than the headlines suggest.
- Don't panic, and don't assume anything has been removed. Existing DoLS authorisations remain valid. Nobody's care changes overnight because of a court ruling.
- Ask how your relative's arrangement is being reviewed. It is reasonable to ask the care home or local authority whether, and when, they are reviewing the authorisation against the new test — and what it means for your relative specifically.
- Keep documenting needs and wishes. As above: whether your relative accepts or objects to their care is now legally relevant, and the record is yours to build.
- Know that the challenge route still exists. The right to challenge an authorisation in the Court of Protection under section 21A of the Mental Capacity Act — usually with legal aid that is not means-tested — has not been removed. An Independent Mental Capacity Advocate (IMCA) can still be appointed where a person has no one else.
- Get proper legal advice for the individual case. This judgment is new, and how it applies to one person's situation is a question for a Court of Protection-experienced solicitor or a specialist advice service such as the Office of the Public Guardian. We provide advocacy and evidence preparation, not legal advice.
What Happens Next?
For now, the law has moved but the official guidance has not caught up. The CQC is working with the Department of Health and Social Care on new guidance — but it says providers cannot wait for it before acting (CQC, 2026). Expect months in which different councils and providers read the new test slightly differently until that guidance lands.
The judgment also reshapes the long-running question of what should replace DoLS. The Liberty Protection Safeguards (LPS), legislated in 2019 but never implemented, were designed around the very breadth of the Cheshire West acid test that has now gone. A narrower definition changes the scale of the problem LPS was meant to solve, and the planned reform consultation will have to be read in that new light. We cover the replacement debate in our DoLS family guide.
In Summary
- On 2 June 2026 the Supreme Court unanimously overruled Cheshire West in A Reference by the Attorney General for Northern Ireland [2026] UKSC 16, and the change is UK-wide and immediate (UK Supreme Court, 2026).
- The "acid test" is replaced by a multifactorial assessment, and a person who lacks Mental Capacity Act capacity can now give valid consent to their care if they understand and accept it.
- The definition narrows, so there will likely be fewer DoLS authorisations — a change welfare bodies warn could reduce independent oversight for some vulnerable people.
- It does not change NHS Continuing Healthcare, the National Framework, or the primary health need test. DoLS and CHC remain separate.
- Existing authorisations stand, the section 21A challenge route survives, and a relative's wishes and feelings now carry legal weight — so keeping good records of needs and wishes matters more than ever.
For the full background on how Deprivation of Liberty Safeguards work — who authorises them, how long they last, and how families can challenge one — read our family guide to DoLS. For where the funding question fits, start with the NHS Continuing Healthcare pathway.
This article is reviewed by legal professionals and senior social-care professionals. It is a general explainer for families and does not constitute legal advice for an individual case. The law in this area changed very recently and official guidance is still being developed; if your family is affected, we recommend speaking to a Court of Protection-experienced solicitor — legal aid is usually available for section 21A challenges.
Frequently asked questions
Did the Supreme Court abolish DoLS on 2 June 2026?
No. The Deprivation of Liberty Safeguards and the Mental Capacity Act 2005 still apply. The Supreme Court only changed the legal test for what counts as a deprivation of liberty. The CQC has confirmed there is no change to the requirements of the Mental Capacity Act itself — only to how a deprivation of liberty is now determined.
Does the Cheshire West ruling affect NHS Continuing Healthcare funding?
No. Deprivation of liberty and CHC are entirely separate legal frameworks. This ruling is about Article 5 liberty rights, not who pays for care. The National Framework for NHS Continuing Healthcare and the 'primary health need' test are unchanged. Your relative's eligibility for CHC funding is not affected by this judgment.
Can my relative still be on a DoLS after this ruling?
Yes. Existing DoLS authorisations remain in place and lawful. However, the CQC has told providers to review their practice in light of the new test, with no grace period. Some arrangements that previously needed a DoLS may, on reassessment, no longer be classed as a deprivation of liberty.
What is the new test for a deprivation of liberty?
A multifactorial assessment of the individual's specific situation — the type, duration, effects and manner of the restrictions — rather than the single 'acid test'. It has two elements: an objective element (confinement) and a subjective element (whether the person has given valid consent to that confinement).
Can a person who lacks mental capacity now consent to their care?
In limited circumstances, yes. The Court held that 'valid consent' is a human-rights concept separate from Mental Capacity Act capacity. A person who lacks MCA capacity but has basic awareness of their arrangements and expresses contentment with them may give valid consent — which can mean there is no deprivation of liberty to authorise.