Deprivation of Liberty

Navigating Mental Health and Mental Capacity with Empathy and Expertise

What constitutes a deprivation of liberty?

The Mental Capacity Act 2005 (MCA 2005), which applies in England and Wales, defines deprivation of liberty by reference to its meaning in article 5(1) of the European Convention on Human Rights (ECHR). This means that to determine if someone is deprived of their liberty, close consideration must be given to both domestic law and the case law of the European Court of Human Rights.

On 2 June 2026 the Supreme Court handed down a landmark judgment redefining what constitutes a deprivation of liberty for a person lacking capacity.

The landmark decision in A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16 commonly referred to as AGNI, overrules the ‘acid test’ established in Cheshire West under which a person was treated as deprived of their liberty if they were under continuous supervision and control and not free to leave. The practical advantage of the Cheshire West acid test was its simplicity, however Supreme Court has now ruled that the Cheshire West 2014 judgment wrongly assumed that if someone lacks legal capacity under the MCA 2005, they cannot give valid consent to the arrangements. In AGNI the Supreme Court has ruled that a new multi-factorial approach is to be applied in each case and that this more closely aligns to the case law developed in the European Court of Human Rights. This will have significant consequences for individuals lacking capacity, their families, care providers, legal professionals, local authorities and NHS Trusts.

These changes apply with immediate effect and extend across the UK.

Department of Health and Social Care Guidance

Noting that the new ruling does not remove the need to comply with article 5 of the ECHR where it is engaged, on 15 June 2026 the Department of Health and Social Care issued important new guidance in response to the AGNI Supreme Court judgment. The Department of Health and Social Care guidance reminds practitioners that where there is reason to believe that a person is deprived of their liberty, the DoLS process still applies in hospitals and care homes, and the court process still applies in other settings.

The guidance also states:

• Providers and local authorities should use their professional experience and take a proportionate and considered approach in how they respond to the Supreme Court judgment, before further government guidance is published.
• In the short term a more cautious approach will be needed when determining whether a person is deprived of their liberty with borderline cases referred for review.
• Registered care home providers or managers and supervisory bodies should share the ruling throughout their organisations and upskill their workforce on the new legal definition and review their policies and protocols.
• Local authorities should make plans for how they will prioritise reviews, assessments of cases coming to the end of their authorisation and new referrals.
• Local authorities should also ensure that essential safeguards such as independent advocacy and access to an appointed relevant person’s representative (RPR) continue where applicable.
• Organisations should continue to ensure they meet their duties and deliver safeguards under the MCA 2005, the Care Act 2014, continuing healthcare and common law duties of care. The Care Act 2014 provides explicit safeguards for adults with care and support needs. Section 5 of the Care Act 2014 states that local authorities must ensure that the services they commission are safe, effective and of high quality.

The guidance reminds decision makers that when assessing a person’s wishes and feelings, consideration should be given to what the person is communicating both verbally (if they are able) and through their actions and behaviour. For example:

• do they appear happy or unhappy?
• are they trying to leave or are they distressed in any way?
• are they able to express a view?

Consideration should also be given to the individual’s previously expressed wishes and feelings or previously observed behaviour that could indicate an objection to the current arrangements.

Furthermore, a person should be given all support necessary to enable communication of their wishes and feelings and be alert to circumstances that may impact someone’s ability to express their wishes and feelings.

Of particular note:

• Where a person fluctuates between appearing content and appearing to object to their confinement, a referral should be made to the local authority for consideration of a DoLs authorisation, or the Court of Protection; and
• Practitioners should continue to use DoLs processes and court applications where there is any doubt as to whether arrangements constitute a deprivation of liberty. This includes where there are any doubts about valid consent, where restrictions are significant or where it appears article 5 of the ECHR may be engaged.

Plans for responding to the judgment should reflect the paramount importance of the wellbeing of people who have health and care needs. The Government must now be pressed to ensure that there are sufficient safeguards against coercion and control in domestic law to secure the wider rights of those with impaired decision-making capacity. An updated Code of Practice to the Mental Capacity Act 2005 shall be essential to support practitioners understanding as to how the judgment shall be embedded into practice.

The question we must all now be asking is whether a person’s care arrangements amount to a deprivation of their liberty in law, however the concept of valid consent is one area where caselaw shall develop to provide further guidance.

Contact us

If you are worried about how this judgment and the application of the new multi – factorial test and how that may impact upon a family member’s care, please do get in touch to ensure your loved one’s rights are protected.

We believe that every person has a right to have their views heard, to deprive someone of their liberty often takes that right away. We are here to ensure a person’s individual rights and best interests are protected. If you are a Relevant Persons Representative and wish to raise a challenge on behalf of a person, please do get in touch.

Our expert team of Court of Protection Health and Welfare Law Society accredited solicitors are here to offer you advice and support. Please get in touch on info@dovestonelaw.com or 0203 910 6565.