The end of DoLS?

So, is this the end of Deprivation of Liberty Safeguards (DoLS)? Not quite. The Supreme Court’s 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 effectively brings to an end the legal position that has stood since Cheshire West in 2014.

Previously, you were considered deprived of your liberty if:

1. You lacked capacity to decide where to live and what care you needed,

2. You were under continuous supervision or control, and

3. You were not free to leave

This became known as the “acid test”.

That is no longer the position. This case has changed two things.

Valid Consent

Now, even if you lack mental capacity, you are able give valid consent to the arrangements if you are sufficiently aware of the circumstances of your confinement and are happy with these.

We await guidance of what constitutes “happy”.

The end of the “acid test”

Restrictions will be assessed by looking at their nature, duration, impact on the individual, how they are applied, and why they are in place. In other words, a multi‑factor approach. The relative normality of the placement for the person will now be relevant.

Key points following the ruling 

• The decision takes effect immediately.

• The decision of the Supreme Court was unanimous.

• The decision can’t be appealed; it was a reference by the Attorney General and doesn’t relate to a specific person so there is no one to take it to an appeal.

• Decisions need to be reached on whether existing authorisations and orders should just be allowed to lapse after the 12-month period or whether local authorities should be taking back to court.
  
  

Likely impact 

• Hardly anyone living in the community is going to be deemed to be deprived of their liberty.

• People living in care homes where the doors are locked to stop them leaving will not be deprived of their liberty.

• The number of DoLS is likely to fall from 335,000 to nearer 15,000-20,000.

• As any confinement needs to be for a significant period people in hospitals won’t be deprived of their liberty.
  
  

Impact re sale of P’s property

As deputy we will still need to show to the court why the sale is in P’s best interest

Even though it is less likely there will now need to be produced a DoLS authorisation, we will need to explain P’s concrete situation re their living arrangements and comment on their wishes and feelings re their living arrangements.

Ideally this should be supported by evidence from the local authority/social worker/care home or placement provider. 

Where DoLS stands after the Supreme Court decision

What this means in practice is a significant shift in approach. The focus moves away from a rigid test and towards a more balanced, fact‑specific assessment of each person’s situation.

There is still a lot to work through. Guidance will be needed on key points, particularly around what amounts to valid consent and how the new approach should be applied in practice.

For now, those involved in care and decision making will need to adjust how they assess restrictions and document their reasoning. Existing processes are likely to change, and there will be a period of uncertainty while the detail settles.

DoLS is not gone, but its role is likely to be much more limited.

If you would like to discuss any aspect of this article further, please contact a member of our Court of Protection team on 0114 267 5588.

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The information in this article is necessarily of a general nature. The law stated is correct at the date (stated above) this article was first posted to our website.

Specific advice should be sought for specific situations. If you have any queries or need any legal advice, please feel free to contact Wrigleys Solicitors.