On Monday 2 June 2026, the Supreme Court handed down judgment in A Reference by the Attorney General for Northern Ireland [2026] UKSC 16, unanimously overruling its own 2014 decision in P v Cheshire West and Chester Council. For more than a decade, the “acid test” set out in Cheshire West, that a person is deprived of their liberty if they are under continuous supervision and control and not free to leave, has been the foundation of Deprivation of Liberty Safeguards practice across England, Wales, and Northern Ireland. As of 2 June 2026, it is not.
The Care Quality Commission has confirmed that the judgment has immediate effect and that providers must familiarise themselves with the change and adjust practice accordingly. The Department of Health and Social Care is working with the CQC and other partners on guidance, but providers are operating under the new law from day one, not from the date the guidance is published.
For the registered managers, nominated individuals, and directors of UK care services, this is the most significant Court of Protection judgment in more than a decade. This piece covers what has actually changed, what providers should be doing now, and where the judgment surfaces in inspections and tender responses.
What the judgment actually says
The Supreme Court has done three things that change practice immediately.
It has abolished the Cheshire West acid test. The bright-line rule that continuous supervision and control plus not free to leave equalled a deprivation of liberty has been held to be wrong in principle and inconsistent with European Court of Human Rights jurisprudence. The acid test no longer governs the question on its own.
It has restored the multifactorial assessment. In place of the acid test, the older approach the Strasbourg court has always applied returns: a deprivation of liberty is assessed by reference to the type, duration, effects, and manner of implementation of the arrangements. No single factor is determinative.
It has revived the subjective element. Under Cheshire West, lack of objection and apparent contentment were treated as irrelevant. The Supreme Court has reversed that position. An individual’s experience of the arrangements is now central. Objection points strongly toward a finding of deprivation of liberty. Contentment points the other way. A person who lacks capacity under the Mental Capacity Act 2005 can still give valid consent to their confinement for the purposes of the subjective element of a deprivation of liberty.
The cumulative effect is a substantial narrowing of the scope of who is deprived of their liberty. Significant numbers of arrangements that would have required DoLS authorisation under Cheshire West will no longer do so under the new approach.
What changes operationally for care providers
For most providers, the practical implications fall into four areas.
The volume of DoLS applications is likely to fall. Many arrangements that previously required authorisation, particularly for residents who are content with their placement and not objecting, will no longer meet the test. This is welcome news for local authorities and Court of Protection processes that have been operating under acute backlog pressure, but it places new responsibility on providers to assess each individual case correctly rather than defaulting to authorisation.
The assessment becomes more nuanced. The acid test was crude but easy to apply. The multifactorial approach requires more judgment. Providers will need to consider the type and duration of restrictions, the manner of implementation, the person’s wishes and feelings, and any signs of objection or contentment. Documentation will need to capture the multifactorial reasoning, not just the application of a bright-line rule.
Existing DoLS authorisations remain in force. The judgment does not automatically void existing authorisations. Where a current authorisation exists, it continues until its expiry. But where authorisations come up for renewal, the new test applies. Providers should not be re-applying for authorisations on arrangements that no longer meet the legal threshold.
Mental Capacity Act 2005 requirements are unchanged. The Mental Capacity Act, the best interests duty, and Regulation 11 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 all continue to apply. Providers are still required to act in a person’s best interests, irrespective of whether they are deprived of their liberty. The duty of care, the consent and capacity framework, and the safeguarding obligations have not changed.
What to do this week
The CQC has indicated that providers may need to obtain legal advice while waiting for official guidance. For most providers, four practical steps for the immediate term.
Audit your current DoLS portfolio. Identify which residents have existing authorisations, when they expire, and which arrangements were authorised primarily on the basis of the Cheshire West acid test. These are the arrangements most likely to fall outside the new test on renewal.
Pause any new DoLS applications that have not yet been submitted. Where an application is in preparation, reassess against the new multifactorial approach before submitting. Applications submitted on the old basis may be returned or refused.
Brief frontline staff and DoLS leads. The acid test has been so embedded in DoLS training across the sector that staff will instinctively apply it. A short structured briefing, with examples of how the multifactorial assessment works, is essential while official guidance is awaited.
Document the reasoning carefully. Where you assess that a particular set of arrangements does not amount to deprivation of liberty under the new test, record the multifactorial reasoning explicitly: type of restriction, duration, manner of implementation, the person’s wishes and feelings, presence or absence of objection. The documentation is the audit trail.
Where this surfaces in inspections and tender responses
The CQC, the Care Inspectorate in Scotland, and the Care Inspectorate Wales all assess provider practice on Mental Capacity Act compliance, DoLS application, and safeguarding. The Supreme Court judgment changes the legal framework against which that practice is assessed.
For inspections from 2 June 2026 onwards, providers should expect inspectors to examine how the service has responded to the judgment. Demonstrating awareness, internal communication, documented reassessment of high-risk cases, and proportionate application of the new test will be more visible scoring evidence than continuing to apply the old acid test.
For tender writing, Mental Capacity Act and DoLS evidence has long been a scored theme in supported living, dementia care, learning disability, and complex needs tender responses. Bid responses that reference the multifactorial assessment, the new subjective element, and the provider’s documented response to the judgment align with the post-2 June 2026 legal framework. Responses still written around the Cheshire West acid test signal to evaluators that the provider’s bid library is not up to date. The principles in winning UK care tenders apply: every claim followed by the system, the frequency, the owner, and the outcome.
Real-world examples of how providers have repositioned bid responses around regulatory and legal change are documented in AssuredBID’s case studies. Reading the tender specification carefully usually reveals where commissioners want Mental Capacity Act and DoLS evidence located in the response.
The bigger picture
The Cheshire West judgment in 2014 produced what became known as the “DoLS deluge”, a tenfold increase in DoLS applications, a permanent backlog in local authority assessment teams, and years of unresolved authorisations. The 2 June 2026 judgment is, in part, the legal system catching up with the operational impossibility that Cheshire West created.
The reset will not be free of difficulty. Frontline practitioners will face uncertainty as they grapple with what now constitutes a deprivation of liberty. Local authorities will need to retrain their Best Interests Assessors. Commissioners will need to update their service specifications. Providers will need to invest in the assessment and documentation that the multifactorial approach requires.
But the medium-term effect is that the legal test will be more proportionate, more recognisable to the people experiencing the arrangements, and more sustainable for the systems administering it. The providers who adjust quickly and document well are the providers who will be in the strongest position when the dust settles.
FAQ
What is the Cheshire West acid test, and why has it been overruled? The acid test, established in 2014, held that a person is deprived of their liberty if they are under continuous supervision and control and not free to leave. The Supreme Court has ruled that this test was wrong in principle, inconsistent with European Court of Human Rights jurisprudence, and led to an over-extensive interpretation of deprivation of liberty.
Does the judgment apply immediately? Yes. The CQC has confirmed that the judgment has immediate effect from 2 June 2026. Providers must familiarise themselves with the new approach and adjust practice accordingly, even while official guidance is being developed.
What happens to existing DoLS authorisations? They remain in force until they expire. The judgment does not automatically void existing authorisations. However, where authorisations come up for renewal, the new multifactorial test applies, and many will no longer be required.
What should providers do about new DoLS applications in preparation? Pause and reassess against the new multifactorial approach before submitting. Applications based purely on the Cheshire West acid test may be returned or refused under the new framework.
How should tender responses address the judgment? Reference the multifactorial assessment, the restored subjective element, and the provider’s documented response to the change. Bid responses still written around the Cheshire West acid test signal that the bid library is not up to date. Mental Capacity Act and DoLS evidence remains a scored theme in supported living, dementia, learning disability, and complex needs tender responses.
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