DoLS Changes 2026: What the Supreme Court Judgment Means for Care Providers

Estimated reading time: 13 minutes

Few areas of health and social care law have generated as much confusion, delay and weary resignation as the Deprivation of Liberty Safeguards (DoLS). Providers have been told for years that DoLS will be replaced. Training has been planned, paused and planned again. Meanwhile, applications have continued to rise and many people have waited too long for the safeguards intended to protect their rights.

In 2026, a major change finally arrived, but it was not the launch of the Liberty Protection Safeguards (LPS). On 2 June 2026, the UK Supreme Court changed the legal approach to deciding whether a person is deprived of their liberty. The Department of Health and Social Care (DHSC) confirmed that the new definition applies immediately across the UK.

That distinction matters. DoLS has not disappeared. The legal test has changed, the current authorisation routes remain, and LPS is still a future reform. Care providers now need to update how they assess restrictions, understand objection and record a person’s wishes and feelings.

Editorial and legal note: This article reflects the position in England as at 7 September 2026 and provides general information, not legal advice. The June 2026 judgment applies across the UK, but statutory schemes and operational routes differ between nations. Organisations should follow current national and local guidance and obtain legal advice in complex or contested cases.

What are the main DoLS changes in 2026?

Direct answer

The position in one sentence

DoLS remains the current legal process in England for adults aged 18 and over in hospitals and registered care homes where Article 5 is engaged. However, since 2 June 2026, the old Cheshire West acid test is no longer conclusive. Providers must consider a person’s concrete situation through a multifactorial assessment. LPS has not yet commenced as at 7 September 2026.

The practical message is equally important. Do not cancel existing DoLS applications automatically. Do not keep using the old acid test as if nothing has changed. Most importantly, do not treat quiet compliance as proof of consent. Where there is doubt, significant restriction or a possible Article 5 issue, providers should continue to use the DoLS or court route as appropriate and seek legal advice when necessary.

By	Dr Alexandria Cavalli-Delbar
Experience	Veterinary Scientist, Business Development Consultant and Health and Social Care Professional
Sources	Key sources and further reading

About the author

Alexandria holds a BSc in Veterinary Science and an MBA, with doctoral research undertaken in virology. Her career spans clinical practice, regulation, operational leadership, people development and organisational growth. She combines evidence, practical experience and a human approach when writing about health and social care, leadership, regulation, workforce, quality and organisational culture.

Key takeaways

• DoLS has not been abolished. It remains the current authorisation process in hospitals and registered care homes for adults aged 18 and over where Article 5 is engaged.
• The acid test is no longer determinative. Continuous supervision and control and not being free to leave remain relevant, but they now sit within a broader multifactorial assessment.
• Wishes, feelings and objection matter. The person’s real experience of the arrangements must be explored rather than reduced to whether they appear compliant.
• MCA capacity and Article 5 valid consent are different questions. A lack of decision-making capacity under the Mental Capacity Act does not automatically answer the separate Article 5 consent question.
• Existing cases need review, not bulk closure. DHSC says cases that may no longer fall within the revised definition should be reviewed as soon as practicable.
• LPS is still future reform. The 2019 legislation created the framework, but the provisions have not yet been brought into force.
• Leadership and documentation are critical. Policies, training, assessment tools and case recording should now reflect the June 2026 judgment and DHSC guidance.

Table of contents

• What are the main DoLS changes in 2026?
  • Key takeaways
• Why DoLS still matters
  • Article 5: one right, but different legal routes
  • DoLS and the Mental Health Act are not interchangeable
• How the Cheshire West acid test worked
• What does the 2026 Supreme Court judgment change?
  • The acid test is no longer conclusive
  • A multifactorial assessment now comes first
• Capacity and valid consent: what providers need to understand
  • Not objecting is not the same as consenting
  • Objection is broader than saying no
  • Support communication before drawing conclusions
• What should providers do about existing and new DoLS cases?
• What remains legally and regulatorily important?
• Where do Liberty Protection Safeguards fit in 2026?
• What care providers should do now
• Key sources and further reading
• Frequently asked questions
  • Has DoLS been abolished in 2026?
  • Does the Cheshire West acid test still apply?
  • Can someone who lacks MCA capacity still give valid consent for Article 5 purposes?
  • Should existing DoLS authorisations be cancelled?
  • Are Liberty Protection Safeguards in force in 2026?
  • When should a provider refer a borderline case?
• The leadership point
• Next steps
  • Need an independent view?

Three developments are often discussed as though they are one. They are not. Separating them is the first step to getting practice right.

• Immediate legal change: the Supreme Court replaced the single Cheshire West acid test with a multifactorial assessment of the person’s concrete situation.
• Continuing current process: where Article 5 is engaged, DoLS still applies in hospitals and registered care homes for adults aged 18 and over. Court authorisation remains the route in other settings.
• Future reform: the Mental Capacity (Amendment) Act 2019 created LPS, but the relevant provisions have not yet commenced. Providers should prepare for reform without acting as though LPS is already operational.

The new definition took effect immediately on 2 June 2026. DHSC has told providers and local authorities to start aligning policies, procedures, training and public-facing information with the judgment. In the short term, it also expects a cautious approach, with borderline cases referred for review.

Why DoLS still matters

Article 5 of the European Convention on Human Rights protects the right to liberty and security. Care can be compassionate, clinically justified and delivered in a person’s best interests, yet still engage Article 5. Good intentions do not replace the need for lawful authority and safeguards.

DoLS was introduced into the Mental Capacity Act 2005 framework after the Bournewood case exposed a protection gap for people who lacked capacity, did not object and were kept informally in hospital. In England, a care home or hospital acts as the managing authority and requests authorisation from the local authority supervisory body when the DoLS route applies.

The process is not simply about completing forms. Its purpose is to ensure that arrangements are independently scrutinised, that the person has representation and routes to challenge, and that restrictions are properly justified and kept under review.

Article 5: one right, but different legal routes

Article 5 is not a ‘DoLS right’. It protects everyone. Its purpose is to prevent a person from being deprived of liberty without lawful justification, proper process and a genuine opportunity to challenge what is happening.

DoLS is one authorisation route. It applies to adults aged 18 and over in hospitals and registered care homes when the statutory conditions are met. Other settings generally require a court route. The Supreme Court judgment changed the definition used to identify a deprivation of liberty. It did not remove the need to use the correct authorisation route where Article 5 is engaged.

DoLS and the Mental Health Act are not interchangeable

The Mental Health Act 1983, as amended, sits alongside the Mental Capacity Act and DoLS framework but serves a different legal purpose. Capacity is not the sole gateway to detention under the Mental Health Act. Its statutory powers and safeguards apply where the relevant legal criteria are met.

This distinction matters in practice. An informal hospital patient who has capacity and genuinely consents to admission should remain free to leave unless lawful powers are used to prevent them from doing so. Services should not allow a voluntary admission to become an informal detention simply because the person later wants to leave.

For providers, the core question is always the same: what are we doing, what lawful authority permits it, and how are we keeping the person’s rights, wishes and ability to challenge visible within the process?

How the Cheshire West acid test worked

From 2014, practice was dominated by the Cheshire West acid test. The central questions were whether the person was under continuous supervision and control and whether they were not free to leave. The person’s compliance, the relative normality of the placement and the purpose of the restrictions were not treated as decisive parts of that objective test.

The clarity of the test had practical value, but it also produced a very broad category of cases. The scale of the current system is substantial. DHSC’s latest official statistics show that 364,900 DoLS applications were received in England in 2024/25, up 9.8% on the previous year. At year end, 118,850 applications had not been completed. Only 21.1% of standard applications completed in that year were completed within the 21-day statutory timeframe.

Source: DHSC, Deprivation of Liberty Safeguards, England: 2024 to 2025

What does the 2026 Supreme Court judgment change?

In [2026] UKSC 16, the Supreme Court unanimously concluded that the Cheshire West approach was incorrect. There is no longer a standalone acid test for the objective element of deprivation of liberty.

Continuous supervision and control and not being free to leave still matter. However, they are now factors within a wider assessment. Decision-makers must start with the person’s real situation and consider the whole picture.

The acid test is no longer conclusive

Providers should therefore remove wording from policies and training that presents the acid test as a conclusive two-part answer. It remains relevant evidence, but no single factor now determines the outcome.

This is not permission to apply a weaker standard. It requires better judgement. The analysis must be individual, evidence-based and capable of explaining why the arrangements do or do not amount to a deprivation of liberty.

A multifactorial assessment now comes first

DHSC’s June 2026 guidance says the starting point is the person’s specific situation. Relevant factors include:

• the type of restrictions, including locked doors, supervision, physical control, restraint, social isolation, covert medication or sedating medication;
• the duration of those restrictions;
• the effects of the restrictions on the person;
• the way the restrictions are implemented;
• whether the person objects and how that objection is expressed;
• the relative normality of the arrangements and the setting;
• how far the situation is from the paradigm of detention in a prison cell;
• whether the limitation comes from restrictions imposed on the person or from the person’s own illness, condition or impairment; and
• the purpose of the arrangements, while recognising that a protective purpose is relevant but not decisive.

In other words, providers must look beyond labels. A locked door is relevant, but so is the person’s experience of that door. One-to-one support may be protective, but its intensity and effect still matter. Several smaller restrictions may also combine to create a very different reality from any single measure viewed alone.

Capacity and valid consent: what providers need to understand

One of the most important parts of the judgment concerns the relationship between Mental Capacity Act decision-making capacity and valid consent for Article 5 purposes.

The judgment does not change the Mental Capacity Act test. Capacity remains decision-specific and must be assessed properly. However, the Supreme Court rejected the assumption that a person who lacks legal capacity under the Mental Capacity Act must automatically be incapable of validly consenting to the arrangements for Article 5 purposes.

DHSC’s guidance explains that a person’s current wishes and feelings now carry significant weight. A person may be able to communicate acceptance of, or contentment with, arrangements even where they lack the relevant MCA capacity. However, where there is serious doubt, providers and practitioners should not infer valid consent.

Not objecting is not the same as consenting

A dangerous shortcut ‘Compliant’ is not a description of capacity, consent or wellbeing. The better question is: how do we know what this person understands, wants and is communicating?

The judgment makes absence of objection legally relevant in a way Cheshire West did not. That does not mean silence equals consent. A person may be unable to speak, may fear consequences, may be sedated or may have learned that objection changes nothing. Providers still need positive evidence about wishes and feelings rather than a simple note that the person ‘does not object’.

Objection is broader than saying no

Objection can be verbal or non-verbal. It may be consistent or intermittent. Staff should look for patterns rather than waiting for a clear statement such as ‘I want to leave’.

• attempting to leave or repeatedly asking to go home;
• refusing care or treatment;
• pushing staff away or physically rejecting care;
• distress linked to the placement or restrictions;
• resisting medication;
• the use of physical restraint or intensive one-to-one care to manage behaviour;
• covert medication where the person is objecting to medication; and
• sedating medication that affects the person’s ability to express a view.

Previous wishes and behaviour can also be relevant, especially where communication or presentation fluctuates.

Support communication before drawing conclusions

DHSC states that people should receive the support they need to communicate their wishes and feelings. Depending on the person, that may require adapted communication, observation over time, review of care and clinical notes, discussions with family and staff, advocacy or more than one visit.

Practitioners should also consider whether sedation, fear, pressure or concern about being a burden is affecting what the person communicates. Where wishes fluctuate or the position remains unclear, that uncertainty should be recorded and escalated rather than converted into a convenient assumption.

What should providers do about existing and new DoLS cases?

The judgment does not invalidate every existing authorisation. Nor does it give providers permission to close pending applications in bulk.

DHSC accepts that some people who currently have a DoLS authorisation may no longer fall within the revised definition. Those cases should be reviewed as soon as practicable. The guidance also states that leaving an authorisation in place while that review is arranged does not, by itself, mean the person is being unlawfully deprived of liberty.

In the short term, providers should expect caution. DHSC says borderline cases should be referred for review. Where there is doubt about objection, valid consent, significant restrictions or whether Article 5 may be engaged, providers should continue to use DoLS processes or court applications as appropriate.

For new cases, the safest operational approach is not to invent a local shortcut. Apply the multifactorial framework, document the person’s wishes and the effect of restrictions, and refer where the position remains uncertain.

What remains legally and regulatorily important?

The legal test has changed, but the wider responsibilities around mental capacity, human rights, representation and good governance remain.

• Continue decision-specific capacity assessments and take all practicable steps to support the person to make the relevant decision.
• Record each material restriction, why it is used, its impact and duration, and the less restrictive options considered.
• Keep best-interests decision-making separate from the deprivation-of-liberty analysis. One does not replace the other.
• Involve the person and, where appropriate, family, representatives and advocates. Explain the process accessibly.
• Review restrictions when needs, risks, medication, presentation, wishes or placement change.
• When the outcome of a DoLS or Court of Protection application becomes known, including a refusal or withdrawal, notify CQC without delay where the notification requirement applies.
• Apply for renewal in time where the revised assessment still indicates that a deprivation of liberty may require authorisation.

CQC reported receiving more than 185,000 deprivation-of-liberty notifications in 2024/25, 15% more than the previous year. It also continues to report long waits in parts of the system, including examples where lower-risk assessments can take two to three years.

Source: CQC, State of Care 2024/25: Deprivation of Liberty Safeguards

Where do Liberty Protection Safeguards fit in 2026?

LPS is not a rumour or a policy idea. Parliament created its legal architecture through the Mental Capacity (Amendment) Act 2019. However, the relevant provisions still require commencement and the supporting regulatory and Code framework has not been brought into operation.

The government announced in October 2025 that it would launch a further consultation on LPS and use the responses to inform a final Mental Capacity Act Code of Practice. As at 7 September 2026, the published government LPS collection does not show that further consultation as launched. Providers should therefore monitor official updates closely, but should not rewrite current procedures as though LPS is already live.

Issue	Current DoLS	Intended LPS architecture
Status	Current legal process where applicable	Enacted architecture, not yet commenced
Age	18 and over	16 and over
Settings	Hospitals and registered care homes	Designed to apply across care, health, community and domestic settings
Core assessment	Six qualifying requirements	Capacity, mental disorder, and necessary and proportionate arrangements
Independent scrutiny	Best Interests Assessor and Mental Health Assessor within the DoLS process	Pre-authorisation review, with Approved Mental Capacity Professional involvement in specified cases
Duration	Standard authorisation up to 12 months	Initial authorisation up to 12 months; first renewal up to 12 months; later renewals up to three years
Planning model	Separate DoLS authorisation process	Designed to sit more closely alongside care and treatment planning

Important: The LPS column summarises the enacted framework and published implementation design. It is not a confirmed go-live specification.

What care providers should do now

The best response is neither to ignore the judgment nor to overreact. Providers need a controlled update that strengthens individualised decision-making without creating a new local legal test.

1. Issue an accurate legal update. Brief managers, clinical leads, safeguarding leads and relevant staff. Make clear that DoLS remains in force but the acid test is no longer conclusive.
2. Audit policies, forms and guidance. Review MCA, DoLS, restrictive-practice, consent, care-planning and safeguarding documents. Remove wording that presents the old acid test as the definitive answer.
3. Create a prioritised reassessment programme. Review people with current authorisations, pending applications or highly restrictive arrangements, prioritising objection, intensive supervision, restraint, sedation, fluctuating wishes and approaching expiry dates.
4. Strengthen communication evidence. Record how wishes and feelings were identified. Show what support was used to help the person communicate and how verbal and non-verbal behaviour was interpreted.
5. Audit restrictions, not labels. Look at the cumulative reality of daily life, including locked doors, one-to-one support, monitoring, restraint, community access, visitor restrictions, medication and organisational routines.
6. Preserve challenge, advocacy and representation. A possible reduction in applications must not lead to reduced access to representation, advocacy, review or challenge.
7. Train staff to exercise judgement. Use scenarios that test whether staff can recognise objection, distinguish capacity from consent, identify less obvious restrictions and escalate uncertainty.
8. Monitor the reform timetable. Nominate a responsible person to monitor DHSC, CQC, local-authority communications, the Mental Capacity Act Code and any LPS consultation or commencement changes.

Do not redesign the whole organisational process around speculation. Make the changes required by the judgment and current guidance now, then update again when the government confirms the next stage of LPS reform.

Key sources and further reading

• Department of Health and Social Care: UK Supreme Court 2026 judgment on what constitutes a deprivation of liberty
• UK Supreme Court: [2026] UKSC 16 judgment
• UK Supreme Court: [2026] UKSC 16 press summary
• Department of Health and Social Care: Deprivation of Liberty Safeguards, England: 2024 to 2025
• Care Quality Commission: State of Care 2024/25 – Deprivation of Liberty Safeguards
• Mental Capacity Act 2005
• Mental Capacity (Amendment) Act 2019
• Department of Health and Social Care: Liberty Protection Safeguards collection
• House of Commons Library: Implementing the Mental Capacity (Amendment) Act 2019
• Department of Health and Social Care: Mental Health Act 1983 Code of Practice

Frequently asked questions

Has DoLS been abolished in 2026?

No. DoLS remains the current process in England for adults aged 18 and over in hospitals and registered care homes where Article 5 is engaged. The Supreme Court changed the definition used to identify a deprivation of liberty, not the existence of the DoLS process.

Does the Cheshire West acid test still apply?

The two familiar factors remain relevant, but they are no longer a standalone or conclusive test. Providers now need a multifactorial assessment of the person’s actual situation.

Can someone who lacks MCA capacity still give valid consent for Article 5 purposes?

Potentially. The 2026 judgment makes clear that lack of legal capacity under the Mental Capacity Act does not automatically decide the separate Article 5 consent question. Present wishes and feelings can be relevant. However, if there is serious doubt, no conclusion of valid consent should be drawn.

Should existing DoLS authorisations be cancelled?

No automatic cancellation should take place. DHSC says cases that may no longer fall within the revised definition should be reviewed as soon as practicable. Leaving an authorisation in place while review is arranged does not itself create an unlawful deprivation.

Are Liberty Protection Safeguards in force in 2026?

No. LPS was created by the Mental Capacity (Amendment) Act 2019, but the relevant provisions have not yet commenced. The current DoLS and court routes therefore remain important.

When should a provider refer a borderline case?

DHSC advises a cautious approach in the short term. Where there is doubt about objection, valid consent, significant restrictions or whether Article 5 may be engaged, providers should continue to refer through the appropriate DoLS or court route and seek legal advice where necessary.

The leadership point

There is an understandable hope that the 2026 judgment will reduce an administrative burden that has become difficult to manage. DHSC itself expects significantly fewer authorisations in the long term.

That may be welcome, but efficiency is not the same as protection. Fewer forms are not automatically evidence of better practice.

The strongest services will resist both extremes. They will not submit applications by reflex simply because that is what they have always done. Equally, they will not describe every quiet, compliant or heavily sedated person as content. They will know the individual, understand their communication, examine the real effect of restrictions and make decisions that can be explained and reviewed.

DoLS has always been at its weakest when treated as paperwork and at its strongest when treated as a human-rights safeguard. The law has changed the test. It has not changed that principle.

Next steps

Care providers should now check whether their policies, training, assessment tools and live cases reflect the June 2026 judgment. Start with the people subject to the greatest restrictions or whose wishes are most difficult to establish. Then make sure your governance process records what was considered, what action followed and when the position will be reviewed.

Need an independent view?

If the judgment has exposed uncertainty in your policies, governance or compliance systems, Delphi Care Solutions can provide independent review and practical support. The aim is not to create more paperwork. It is to help services understand risk, strengthen oversight and make the next steps clearer.

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