The DoLS Acid Test Is Gone. Here’s What That Actually Means for Your Practice.

25th June 2026

Written by Stephanie Austin — Owner & Lead Trainer, Prima Cura Training | Last updated: June 2026  |  Next review: December 2026  |  This post will be updated as further DHSC interim guidance is published.

---

There’s a lot to cover here, so if you’re short on time or need a quick answer for a specific question, jump straight to the FAQs.

---

On 2 June 2026, the Supreme Court handed down a judgment that changed the legal definition of deprivation of liberty overnight. Not in a year. Not with a transition period. Immediately.

If you work in a care home, a hospital ward, supported living, or anywhere that the Mental Capacity Act 2005 shapes your day, this ruling affects you. And based on what I hear from delegates in my MCA and DoLS training sessions, the timing couldn’t be more challenging, because the misunderstandings that were already causing problems in practice haven’t gone away. This ruling makes those misunderstandings more consequential than ever.

So here is what changed, why it changed, and what it means in practice, written plainly.

What Was the Cheshire West “Acid Test” and Why Has It Been Scrapped?

The Cheshire West judgment, handed down by the Supreme Court in 2014, created what became known as the acid test for determining whether someone was deprived of their liberty. Under that test, a person was deprived of their liberty if they were subject to continuous supervision and control and were not free to leave. Critically, it didn’t matter whether those arrangements were necessary, beneficial, or in the person’s best interests. The test applied regardless.

The logic behind it was protective: the Supreme Court at the time wanted to ensure that vulnerable people who lacked capacity had access to legal safeguards under Article 5 of the European Convention on Human Rights (ECHR). The intention was sound. The result was a system under enormous strain.

Before Cheshire West, there were around 13,000 DoLS applications per year in England. Within 12 months of the ruling, that figure had risen tenfold. By 2024/25, care homes and hospitals were making 364,900 applications a year. Of those, 118,850 remained uncompleted. The average time to complete an application was 126 days, against a statutory timeframe of 21 days. The system was, in practice, broken.

On 2 June 2026, a seven-Justice panel of the Supreme Court unanimously overruled its own 2014 Cheshire West decision. The acid test is gone. In its place is a multifactorial assessment that considers the whole picture of a person’s situation.

In plain English: there is no longer a single checklist test. Determining whether someone is deprived of their liberty now requires professional judgement, contextual assessment, and proper weight given to the person’s own wishes and feelings.

What Changed?

	Before: Cheshire West 2014	After: 2026 Supreme Court Ruling
Legal test	Single ‘acid test’: continuous supervision and control + not free to leave	Multifactorial assessment: no single factor is determinative
Capacity & consent	Lacking MCA capacity = cannot give valid consent (automatic)	Lacking MCA capacity does NOT automatically remove valid consent for Article 5 purposes
Person’s wishes	Irrelevant: compliance and lack of objection could not reduce the threshold	Central: wishes and feelings carry significant weight and can constitute valid consent
Purpose of care	Irrelevant to the test	Relevant factor: care and protection vs punishment or coercion is considered
Relative normality	Irrelevant: hospital/care home norms made no difference	Relevant: context of the setting is considered in the assessment
Volume of DoLS applications	364,900 applications in 2024/25; 118,850 backlog	Expected to reduce significantly over time
Who it applies to	Adults lacking MCA capacity in hospitals and care homes	Same settings, plus 16/17-year-olds in community settings via Court of Protection
Effective from	2014	2 June 2026: immediate effect, no transition period

The Cheshire West acid test vs the 2026 multifactorial assessment at a glance

What Is the New Legal Test for Deprivation of Liberty?

The Supreme Court has confirmed that determining whether a deprivation of liberty exists under Article 5 of the ECHR requires consideration of three elements together:

1. The objective element: Is the person actually confined, in a restricted place, for a not negligible period of time?
2. The subjective element: Has the person given valid consent to that confinement?
3. The attribution element: Is the state responsible for that confinement?

The 2026 ruling changed how both the objective and subjective elements are assessed.

On the objective element: practitioners must now carry out a multifactorial assessment. The DHSC’s interim guidance published on 15 June 2026 sets out what this assessment must consider:

The 8-Factor Multifactorial Assessment

#	Factor to assess	What to consider in practice
1	Type of restrictions	Locked doors, physical restraint or guidance, sedating medication, supervision levels, social isolation, one-to-one monitoring
2	Duration	How long have the restrictions been in place, or are they planned to continue
3	Effects on the person	Is the person distressed, calm, or content? How do the restrictions impact their daily experience?
4	Manner of implementation	Are restrictions applied sensitively and proportionately, or rigidly and without review?
5	Whether the person objects	Any sign of objection, verbal or behavioural, points toward a deprivation of liberty
6	Distance from a prison-cell scenario	How far removed are the arrangements from a situation of actual detention?
7	Relative normality of the arrangements	Greater restrictions are needed for a DoL to arise in a person’s own home vs a specialist clinical setting
8	Purpose of the arrangement	Care and protection = relevant. Punishment or coercion = automatic engagement of Article 5
Important: No single factor is determinative. The assessment must consider the full picture of the individual’s situation. Always assess the objective element (confinement) before moving to the subjective element (valid consent).

Source: DHSC interim guidance, 15 June 2026 – gov.uk

On the subjective element: this is where the ruling makes its most significant change. The 2014 Cheshire West judgment assumed that if a person lacked legal capacity under the Mental Capacity Act 2005, they could not give valid consent to their confinement for Article 5 purposes. The 2026 ruling confirms that the assumption was wrong.

A person may lack legal capacity to make decisions about their care and residence while still being able to express their wishes and feelings about those arrangements. If a person is conscious of their environment, has a basic level of understanding of their situation, and is capable of expressing a view that they accept or are content with the arrangements, they may be able to give valid consent for Article 5 purposes.

This is a fundamental shift. And it’s one that will only be applied properly by practitioners who understand the Mental Capacity Act’s five principles and apply them individually, not as a blanket.

Does This Mean DoLS No Longer Applies?

No. DoLS has not been abolished. The process still exists and still applies, but the threshold for when it is engaged has narrowed.

Where there is reason to believe a person is deprived of their liberty, the DoLS process still applies in hospitals and care homes. The Court of Protection process still applies in other settings, including supported living, shared lives arrangements, extra care housing, and domestic settings. The ruling also applies to 16 and 17-year-olds in those community settings.

What has changed is that many people who were previously subject to DoLS authorisations may no longer be, because either:

• The multifactorial assessment concludes that the arrangements do not, taken in the round, amount to a deprivation of liberty, or
• The person is able to give valid consent through an expression of their wishes and feelings, which removes the subjective element from the test

The DHSC has been clear in its interim guidance that existing authorisations should be reviewed as soon as is practicable, and that local authorities should make plans for how they will prioritise those reviews, assessments of cases approaching the end of their authorisation period, and new referrals.

What the DHSC has also been clear about: where practitioners are in any doubt about whether a person is objecting to their confinement, or where a person fluctuates between appearing content and appearing to object, a DoLS referral should still be made.

Doubt means refer. That position hasn’t changed.

Quick-Reference: Do I Need to Make a DoLS Referral?

What Does This Mean for How You Assess Mental Capacity?

This is where I want to be direct, because in my training sessions over the years, this is where the cracks most consistently appear.

Capacity assessments in the context of DoLS have to work harder now. The 2026 ruling makes clear that a person can lack legal capacity to make decisions about their care and residence while still having sufficient awareness to express their wishes and feelings about those arrangements. That distinction is not a small one. It changes how you need to approach an assessment.

But before we get to the nuances of the new test, there’s a problem that was already there and still is: the misapplication of the MCA’s five principles.

The Mental Capacity Act 2005 is built on five principles. Principle 1 states that a person must be assumed to have capacity unless it is established that they lack it. Principle 2 states that a person is not to be treated as unable to make a decision unless all practicable steps to help them do so have been tried without success.

What I see regularly in training is a very different approach in practice. Capacity is applied as a category, not a decision. A person is assessed, recorded as lacking capacity, and that conclusion then floats across all decisions and all circumstances as though it were a permanent and universal finding. It isn’t. Capacity is decision-specific and time-specific. A person may lack the capacity to decide where to live but retain the capacity to decide what to eat, what to wear, and whether they want to see visitors. These are not the same decision.

The blanket approach to capacity isn’t just sloppy practice. The 2026 ruling, it creates real legal risk. If a person has been subject to a DoLS authorisation on the basis that they lacked capacity to consent, and a valid assessment now needs to establish whether they can express wishes and feelings that amount to valid consent, a blanket historical finding won’t carry the weight it once did.

Get the assessment right. Make it specific. Make it documented. Make it defensible.

Valid Consent Under the 2026 Ruling

What Does Valid Consent Look Like Under the 2026 Ruling?
DOES NOT amount to valid consent	MAY amount to valid consent
✗  Passive compliance with care routines	✓  Verbally saying they are happy where they are
✗  No visible distress or agitation (alone)	✓  Actively choosing to stay when offered alternatives
✗  Unable to communicate in any form	✓  Expressing contentment through consistent behaviour and actions
✗  Fluctuating between objection and apparent acceptance	✓  Nodding, smiling, or moving toward care willingly and consistently
✗  Appearing content due to sedating medication	✓  Communicating understanding of their situation at a basic level
✗  A historical capacity assessment recording ‘no capacity’	✓  Showing awareness of the environment and expressing a settled view about it
The key question to ask: “How do we know what this individual actually understands and wants?” — not simply “Are they compliant?” Source: DHSC interim guidance, 15 June 2026
All three conditions must be present for valid consent to exist
1.  The person is conscious of their environment 2.  The person has a basic level of understanding of their situation 3.  The person is capable of expressing a view that they accept or are content with the arrangements

Note: Compliance alone is never sufficient. Assessment must consider verbal and behavioural communication, care notes, family input, and the impact of medication.

The Misunderstanding I Keep Seeing in the Training Room

I want to say something that doesn’t always get said clearly enough.

DoLS is not inherently restrictive. That framing, that DoLS is a process you do to someone, gets people confused about what it’s actually for.

DoLS exists to protect the individual. The authorisation process is a legal safeguard. It is the mechanism by which independent oversight is applied to care arrangements that restrict a person’s liberty so that those arrangements can be checked, challenged, and reviewed. The protections it provides include the right to an independent mental capacity assessor, the right to a best interests assessor, the right to a relevant person’s representative, and the right to access an independent mental capacity advocate (IMCA) where appropriate.

When DoLS is applied correctly, it is an act of care, not an act of control.

The confusion I see is that staff sometimes treat the authorisation as a burden and lose sight of why the safeguards exist. And then, in the same breath, they don’t always stop to ask the question the law requires: are there other ways we could meet this person’s needs that would be less restrictive? Because if DoLS is engaged, the best interests assessor is required to consider whether there are less restrictive options. That consideration is not optional. It is built into the process.

A person living in a care home with a locked front door who loves to walk might need a DoLS authorisation for their safety. But that authorisation should sit alongside a proper review of whether there is a way to give them supported access to outdoor walks, or time in a garden, or a social connection that reduces distress and meets the same need the restriction is trying to address. Restriction and fulfilment are not opposites. Good care holds both.

The 2026 ruling doesn’t change that principle. If anything, it sharpens it. The new multifactorial assessment explicitly considers the purpose of the arrangements and weighs the person’s wishes and feelings. That is an invitation to care better, not just to document differently.

What About the Liberty Protection Safeguards?

The Liberty Protection Safeguards (LPS) were passed into law to replace DoLS following extensive criticism of the existing system, including a 2014 House of Lords report that concluded DoLS was not fit for purpose. Despite the legislation passing, LPS has never been implemented.

In 2025, the UK Government committed to consulting on the future direction of LPS during 2026. The 2026 Supreme Court ruling changes the shape of that consultation significantly. The acid test, which was the central trigger for DoLS authorisation, is now gone. Any LPS framework that was designed around that test needs to be rethought.

The DHSC has confirmed it is working with stakeholder partners and charities to develop additional interim guidance, including practical case studies. NHS England is publishing an updated DoLS e-learning module by 30 July 2026.

The short version: LPS is still coming, but the form it takes is now less certain. In the meantime, the DoLS process continues to apply under the updated legal framework established by the 2026 ruling.

What Does “Defensible Decision-Making” Look Like Right Now?

Given that the law changed with immediate effect, and that additional guidance is still being developed, practitioners and providers are in a position where professional judgement is being asked to do more work than usual. That makes documentation more important than it has ever been.

A defensible decision in the current environment is one where:

• You have assessed the person’s specific situation, not applied a category or assumed the acid test result
• You have carried out a genuine multifactorial assessment that considers the type, duration, effects, manner of implementation, and relative normality of any restrictions
• You have genuinely considered the person’s wishes and feelings, and recorded what they expressed and how, even if they lack formal legal capacity to make the decision
• You have assessed whether those wishes and feelings amount to valid consent for Article 5 purposes, with appropriate professional reasoning recorded
• You have considered less restrictive options and documented what was considered and why alternatives were or weren’t adopted
• Where you are in any doubt, you have made a DoLS referral to your supervisory body

The ADASS guidance following the ruling is clear: the starting point is the multifactorial assessment of the person’s proposed care arrangements. That assessment should precede any consideration of whether the person can give valid consent. Get the objective element right first, then move to the subjective element. Doing it in that order will help rule out many cases before you reach the more complex question of valid consent.

If in doubt, refer. Document the reasoning. Make the decision defensible.

What Should Care Providers and Managers Do Right Now?

The DHSC has directed that organisations should begin aligning their practice with the new legal position immediately. The 2008 DoLS Code of Practice was republished on 2 June 2026 and remains a helpful starting point, particularly Chapter 2 on the objective element of deprivation of liberty, though it does not fully reflect the 2026 ruling yet.

Practically, this is what it looks like right now:

Carry out a review of all current DoLS authorisations to identify cases that may no longer meet the new threshold. Prioritise cases where the person appears content with their arrangements and where the restrictions are relatively normal for the care setting.

For new referrals, train your team to carry out a multifactorial assessment before deciding whether a referral is needed. The acid test is not the starting point anymore.

Ensure that mental capacity assessments are decision-specific, time-specific, and properly documented. A blanket historical finding is not sufficient.

Ensure that best interest decision-making records show that less restrictive options were genuinely considered. This has always been a requirement. It now carries more weight.

Where staff are unsure, refer. The cost of an unnecessary referral is administrative time. The cost of a missed deprivation of liberty is a breach of a person’s fundamental rights.

Review your internal policies and update any documentation that references the Cheshire West acid test as the primary legal standard.

And make sure your team is trained on the updated position. Not a quick briefing. Proper, structured training that covers what the MCA actually requires, what the new test actually means, and how to make decisions that hold up to scrutiny.

Training on the Mental Capacity Act and DoLS

At Prima Cura Training, we deliver Mental Capacity Act and DoLS training across Manchester and the North West, both as standalone sessions and as part of broader safeguarding and social care programmes. Our training reflects current law, current DHSC guidance, and real-world practice, not textbook theory.

We’re already updating our MCA/DoLS content to reflect the 2026 ruling and the interim DHSC guidance. If your team needs to get up to speed on what this judgment means for your practice, get in touch, and we can talk through the right option for your organisation.

You can reach us on 0333 999 8783, by email at info@primacuratraining.co.uk, or through the enquiry form on our website.

Relevant courses:

• Mental Capacity Act 2005 and DoLS Training
• Adult Safeguarding Level 1 & 2
• Safe Medication Administration

Frequently Asked Questions

---

This article is written for general information purposes and reflects the law and guidance current as of June 2026, including the DHSC interim guidance published on 15 June 2026. It does not constitute legal advice. The law and associated guidance in this area are developing rapidly following the Supreme Court ruling. Practitioners and organisations should seek specific legal or professional advice in relation to their own circumstances.

The DoLS Code of Practice and further DHSC guidance should be consulted directly at gov.uk/government/publications/changes-to-the-definition-of-deprivation-of-liberty