A recent Supreme Court ruling has significantly altered the legal definition of deprivation of liberty, impacting safeguards for individuals lacking mental capacity. The judgment, delivered on June 2, 2026, overturned the previous acid test
established in the Cheshire West case, requiring a more nuanced, multifactorial assessment.
This development has disrupted the planned rollout of the Liberty Protection Safeguards (LPS), which were intended to streamline the authorisation process for deprivations of liberty and extend protections to a wider range of settings and age groups. The Supreme Court judgment has fundamentally disrupted
the progression and future rollout of the LPS. Because the ruling is expected to significantly reduce formal authorisations,
the government's re-evaluation of LPS is now awaited.
Kingston Council and South West London and St George's Mental Health NHS Trust are now operating under the existing Deprivation of Liberty Safeguards (DoLS) and the Mental Capacity Act 2005 frameworks while they navigate these changes. They are applying the updated test determined by the judicial review for any referrals made for deprivation of liberty and have a quality assurance process to sign off these requests after an assessment. An advice note has been disseminated to support alignment with the Supreme Court ruling, and providers have been shared information on the changes as far as they can be understood in the absence of statutory guidance. This advice note guides practitioners in aligning their practices with the Supreme Court ruling.
The new ruling requires a multifactorial assessment of an individual's specific situation. This means that a person lacking legal capacity can still give valid consent to their care arrangements if they express contentment and show no objection to their environment.
This approach aligns more closely with wider European human rights legislation. The Supreme Court overturned the Cheshire West [2014] acid test,
which previously determined deprivation of liberty based on whether a person was in hospital or a nursing home lacking capacity, even if they were happy and didn't express concerns. The new ruling requires this multifactorial assessment, where contentment and lack of objection to their environment can constitute valid consent to care arrangements, even if the person lacks legal capacity.
Robust joint processes for capacity assessments and best interests principles remain in place. For children under 16, decisions continue to be carefully evaluated in line with established Gillick competency principles with those who hold Parental Responsibility to balance clinical safety with the young person's growing autonomy.
Ed Montgomery, Managing Director at Your Health Care, noted that fundamental processes for supporting individuals with learning disabilities are expected to remain similar, with a continued multi-agency approach to safeguarding.
Further information on the Health Overview and Scrutiny Panel meeting can be found in the Public reports pack and the Agenda frontsheet.
