The Supreme Court’s recent deprivation of liberty judgment Deprivation of Liberty: A Reference by the Attorney General for Northern Ireland [2026] UKSC 16 has generated significant discussion across the sector, with many describing it as the most important development in this area since P v Cheshire West and Chester Council [2014] UKSC 19. Some commentary refers to the case as “Cheshire West 2”, signifying its importance. For deputies and case managers, this decision raises important questions about how deprivation of liberty will be assessed in practice and what this could mean for the people we support. Boyes Turner’s Community Care & Welfare team regularly work alongside deputies and case managers to support people who lack capacity to make certain decisions for themselves. Given the potential impact of this judgment, we have set out some of the key questions professionals may be asking following this decision. What does the Supreme Court's 2026 deprivation of liberty judgment mean? For over a decade, we have relied on the “acid test” in Cheshire West. If a person was under “continuous supervision and control” and “not free to leave”, they were considered deprived of their liberty. This was regardless of whether they appeared happy and/or compliant with their care arrangements. The Supreme Court has revisited that approach and concluded that the analysis in Cheshire West was wrong. Rather than applying the acid test, a broader assessment must be taken determining whether someone is deprived of their liberty for the purpose of Article 5. This takes effect immediately and there is no pause for implementation or new legislation. Has the Supreme Court overturned Cheshire West? Not entirely. The concepts of supervision, control and freedom to leave will remain relevant considerations for deprivation of liberty. However, they are no longer the sole factors that will determine whether Article 5 is engaged. Following the Supreme Court decision, the overall circumstances of the arrangement (including factors Cheshire West previously treated as irrelevant) must now be considered. This is being referred to as a “multi-factorial approach” and no single factor is determinative. Why is the new deprivation of liberty judgment so significant? Cheshire West fundamentally changed deprivation of liberty law in 2014. The “acid test” led to a substantial increase in DoLS authorisations and Court of Protection applications. The new judgment raises the possibility that some arrangements currently treated as deprivations of liberty may no longer be considered to meet the new legal test, and therefore may not require formal authorisation. The safeguards that currently exist may no longer be available for some. This could place people who are already in vulnerable situations in a more precarious position. The judgment has changed the legal test, however, does not bring in a requirement for any alternative safeguards. Will there be fewer DoLS authorisations and Court of Protection applications? Potentially, yes; almost certainly for DoLS authorisations, but maybe not for court applications. One of the practical consequences may be that some care arrangements will no longer meet the threshold for a deprivation of liberty despite involving significant support, supervision and restrictions. However, it is far too early to know how substantial that reduction will be. This will depend on how the Court of Protection interprets and applies the judgment in practice. What does the new deprivation of liberty test mean for Professional Deputies? Although deprivation of liberty is often viewed as a welfare issue, the judgment has implications for Professional Deputies. Deputies are frequently involved in care packages. Any change to the legal framework governing deprivation of liberty is therefore likely to have practical and financial implications for deputyship teams and the clients they support. For some clients, it may be clear that the legal test means that they are not deprived of their liberty and that existing authorisations or court orders will come to an end. For other clients, this may be less clear cut and if there is uncertainty or dispute over whether a deprivation of liberty arises, an application to the Court of Protection may be required in any event. If a client is currently residing in a care home and the deprivation of their liberty is authorised through a standard authorisation, giving them access to non-means tested legal aid, the new legal test may mean that the standard authorisation ends, simultaneously ending the client’s eligibility for non-means tested legal aid. If an application to the Court of Protection is required to resolve any uncertainties or disputes, the cost of obtaining legal advice may need to be privately funded. Deputies would therefore need to consider the extent to which they have the relevant authority to incur the costs of this advice, including potentially bringing welfare proceedings, in line with Re ACC [2020] EWCOP9. In any case where the position may now look different in light of this judgment, careful thought is likely to be needed as to the importance the legal framework to a person’s care and support arrangements. For example, for brain injury clients particularly, often they will require a legal framework around their care plan to help them engage with a support package. It often has a practical benefit in providing a client a framework to operate in, which they also know has been scrutinised appropriately. How important are wishes and feelings following the Supreme Court decision? This is one of the most interesting parts of the case. Cheshire West had told us that a person’s compliance, happiness or lack of objection did not determine whether they were deprived of their liberty. The phrase, “a gilded cage is still a cage” was often used as a short-hand for this. The Supreme Court’s judgment places considerably more emphasis on a person’s wishes and feelings when considering whether a deprivation of liberty arises and alters the existing understanding of what “valid consent” means. This does not mean the objections automatically create a deprivation of liberty or that apparent consent automatically removes one. However, these factors are likely to play a far more significant role than they have previously under Cheshire West. This change reflects a broader movement towards recognising autonomy, even where an individual lacks capacity to make the relevant decision. It also reflects an increasing emphasis in the Court of Protection on the importance of evidence relating to P’s wishes and feelings. Should Professional Deputies review existing deprivation of liberty cases? Yes, but cautiously. The judgment does not automatically invalidate existing authorisations or orders from the Court of Protection. However, Deputies may wish to identify cases where deprivation of liberty authorisations form a significant part of ongoing care planning. Having up-to-date evidence about clients’ views about their current care arrangements will be an important starting place. Deputies will need to consider whether clients appreciate their current living and care arrangements, and what their views are and how these are evidenced, through verbal communication, if possible, but also the actions they are taking. Whilst, as above, their views will not necessarily be determinative, they will now play a significantly more important role in establishing whether or not the client is deprived of their liberty and/or whether they can consent to the arrangements in place for their care. It may be helpful to keep those cases under review whilst awaiting further guidance. Practical steps for Professional Deputies following the Supreme Court judgment Deputies will need to review existing DoLS authorisations and community DOL orders in line with their duties under Re ACC [2020] EWCOP 9. We would suggest a cautious approach ensuring updated evidence about your clients’ wishes and feelings are obtained. The acid test has been replaced. We will instead need to assess different factors using a multifactorial approach. Ensure a person’s wishes and feelings are accurately recorded. A person’s wishes and feelings in relation to their care arrangements will need to be considered and reviewed regularly, regardless of their capacity to consent to care and residence within the context of the Mental Capacity Act 2005. Close attention will need to be paid to whether a person objects to their arrangements, or, whether they appear settled. Wishes and feelings don’t necessarily have to be expressed verbally; they could be evidenced through actions. Monitor developing case law and professional guidance as it is issued. This has been coming thick and fast. We are likely to receive additional statutory guidance and/or revisions to existing guidance, but this will, of course, take time. The full effect of the judgment will only become clear as the Court of Protection begins applying it in practice. What is already clear is that there is a new chapter of deprivation of liberty law. Our team will continue to provide updates for Professional Deputies regarding the steps to be taken in light of the judgment, as further information becomes available. If you would like more information, please contact our team on communitycare@boyesturner.com.
