The Supreme Court has fundamentally revisited the law on deprivation of liberty under Article 5 of the European Convention on Human Rights.
In a judgment published on 2 June 2026, it has set out a new multifactorial approach, replacing the previous 'acid test' which has been the benchmark for determining whether a person is deprived of their liberty for the last decade.
For health and social care providers, this decision will lead to a fundamental change in how deprivation of liberty is approached in practice.
What did the Court decide?
The Supreme Court held that the Cheshire West approach had wrongly reduced the Article 5 analysis to an acid test of whether the person is under continuous supervision and control and not free to leave, and instead a multifactorial approach is required in order to determine whether a person is deprived of their liberty.
In essence, the Court determined that whether a deprivation of liberty (DoL) arises in any particular case requires the application of subjective factors relevant to the individual.
In particular:
- Compliance and/or lack of objection is a part of the multi-factorial evaluation needed to establish whether a DoL arises in any given case.
- There is a need for some element of coercion or externally imposed restrictions for a DoL to arise, and a person who is so profoundly disabled they are unable to conceptualise or physically achieve freedom is not in fact being deprived of anything.
- 'Valid consent' in this context is a Convention concept, not to be equated with (or excluded by) domestic capacity rules. In other words, just because a person does not have capacity to consent to their care and living arrangements in accordance with the Mental Capacity Act 2005, does not mean they are unable to provide 'valid consent' for the purposes of the Convention.
- The individual’s wishes, feelings and degree of objection, are directly relevant to whether Article 5 is engaged.
What is the practical impact?
The impact of this ruling will be profound with the implications being interpreted and implemented over time. The following are the key initial takeaways:
- A clear departure from the Cheshire West orthodoxy
The judgment is not simply a qualification - it is an entire course correction for the domestic law relating to deprivation of liberty. For over a decade, practice has been driven by a relatively blunt proposition, that is if a person, and their circumstances, meet the acid test, they are deprived of their liberty.
That is no longer the position.
- The return of the “subjective element”
A central feature of the judgment is the restoration of the subjective limb of how Article 5 ought to be applied in practice.
This means providers must now grapple with:
- Whether there is genuine absence of consent in Convention terms
- How the person understands, experiences and responds to their care arrangements
Deprivation of liberty will therefore be more person-specific.
- Impact on DoLS and LPS practice
The immediate implication is that the current system - built around a widely cast interpretation of deprivation of liberty - is operating on too broad a footing.
In practice, the application of this decision will lead to:
- A reduction in cases requiring formal authorisation of a DoL (by either the DoL standard authorisation route, or a Court), particularly where individuals are settled and not objecting, and
- Increased focus on borderline determinations, where complex cases will require careful consideration
- Greater emphasis on defensible reasoning
As the test for determining whether a particular situation is a deprivation of liberty is no longer as precise as the simple application of the 'acid test', decisions will be judged on:
- How well the Article 5 analysis is articulated - what factors were taken into account, and what weight is placed on those factors
- Whether wishes, feelings and evidence of objection have been properly considered
In short, the challenge will increasingly be not just what decision was reached (whether a DoL or not a DoL), but how that decision was reached. While this judgment will inevitably lead to fewer individuals being caught within the 'net' of deprivation of liberty, it will also lead to increased scrutiny as to how decisions around deprivation are made.
The practical impact of the decision will invariably involve both practitioners and indeed the Courts, continuing to need to grapple with highly complex decisions as to whether a DoL does or does not arise in any given circumstance.
What next?
In practical terms, organisations should:
- Revisit how deprivation of liberty decisions are being made on the ground.
- Ensure staff understand that whilst the acid test remains relevant in contextual terms, it is no longer sufficient on its own to determine that a person is subject to a DoL.
- Review cases with compliant patients or residents currently subject to DoL authorisation, particularly where restrictions are entrenched, to consider whether on application of wider factors, a DoL is still considered to arise.
- Strengthen documentation around:
- wishes and feelings
- any evidence of objection
- the overall Article 5 analysis
There will inevitably be a period of adjustment as this decision is worked through in practice. In the meantime, a cautious and well-evidenced approach will be key to manage organisational risk.
How we can help
We can assist with:
- Reviewing and updating organisational DoL policies and procedures in light of this judgment
- Delivering focused training on the post‑judgment position
- Supporting case audits, particularly in relation to compliant individuals
- Advising on borderline or contentious cases
We will be issuing further insight as the position develops.
